Well, it's happened. Not only is China a world leader in manufacturing, it's fast becoming a world leader in global innovation.
According to this report, the patent filings in China will outpace Japan and the US in 2011. The figures are startling. China experienced an annual growth of 26.1 percent in total patent volume from 2003-2009, as compared to the US's 5.5 percent growth rate.
This case is an excellent example of how the novelty and inventive step tests are carried out in Australia. It does not break new ground but provides good summaries of those two tests. The issue of Entitlement is also covered, but is not worth considering in detail. While the result of the case is probably of immense concern to the various protagonists, it is the useful round up of the principles of novelty and inventive step that interest me.
Whether or not use of a trade mark has the necessary characteristics to qualify for a finding of infringement must be tested with reference to the context in which it is used. That context includes such factors as style, size, location and the presence of other more prominent trade marks,
In my post of 24 March 2010, I reported on the decision of a single judge of the Federal Court in connection with this dispute. That court found that the use of the words "luscious lips" in a blurb that appeared on the back of a package was not use of those words as a trade mark. The judge was influenced by the fact that the package already showed both "Allen's" and "Nestle" in a prominent manner that indicated that they were being used as trade marks, thus diluting the effect of "luscious lips" as it appeared in relatively small type together with a number of other names on the back of the package.
In this case, the Full Federal Court said that the primary judge was correct and therefore that there was no infringement.
In a very welcome move, IP Australia is upgrading its patent searching tool, known as AusPat. Apparently it will be capable of delivering up to "180 unique pieces" of information on each patent and patent application.
Full text searching is to made available by the end of 2010. A tool called "EDossier" will provide electronic access to a suite of documents relating to the prosecution of patent applications.
This new functionality will be a boon to the profession, particularly the smaller firms and sole proprietorships (yours truly).