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Protection of Intellectual Property for
Small Business

 

North Shore Wednesday Group

19 June 2019

Greg Ross

Partner

 



What is the pudding here for?


Deezert: Guest Post: Is Christmas pudding - pudding?

 

What is “Intellectual Property”?

  • Type of property right that covers intangible creations of the human intellect, as opposed to things like land or goods
  • String of different laws and rules mostly limited territorially in effect makes overseas protection expensive - WIPO
  • Best initially explained by some examples to be touched upon today:
  • Copyright
  • Trademark
  • Patent
  • Registered Design
  • Trade Secrets
  • Confidentiality obligations



What “Intellectual Property” Laws
don’t do

  • An “idea” is not protectable “at law” as intellectual property
  • Protecting an idea is problematic but not impossible
  • Often need action / registration
  • Our laws only apply onshore, overseas local law (with some exceptions)
  • No guarantee of making money from IP


 

Common Law v Statutory

  • Protecting an idea is problematic
  • We don’t have an equivalent of the USA’s Defend Trade Secrets Act of 2016
  • Statutory protections quicker and easier to enforce than general law things like passing off or deceptive an misleading conduct

Account of profits available for breach of some statutory IP rights

 

Problems with Common Law Protections

  • Protecting an idea is problematic
  • Contracts
  • Types of action to enforce / defend
  • Cadbury Schweppes v Pub Squash

.

  • Unlike some forms of statutory IP right, no worldwide enforcement system

 

Benefits of Statutory Protection for some types of Intellectual Property

Overseas registration can be of help but it costs

Formal “account for profit” remedies for patent and trademark infringement

 

 Copyright Symbols | Copyright all rights reserved symbols Copright

 

  • Nature

Length of copyright

  • Literary, artistic, music and dramatic works
  • “Mickey Mouse” Amendments following signing of US Free Trade agreement - 80 years from creation
  • Also photographs, cinematograph films, sound recordings, performances and broadcasts
  • Came into effect 1 January 2005
  • Copyright Act
  • Extends length of copyright in works still in copyright
  • Computer code
 
  • Protects an expression not an idea
 

 

Moral Rights

  • Separate to Copyright
  • Three types of moral rights
  • Right to be attributed as author
  • Right not to be falsely attributed as authority
  • Right of integrity
  • Art Gallery Canberra

 

  • Original author retains moral rights even if employee
  • Cannot be assigned or waived must obtain specific consent

 

Trademark

Common law and statutory

Can’t own common, location or mere descriptive words

Statutory much better protection

Local Registration but can apply to extend overseas (for a cost)

Word, style of word (font), logo,

Attaches to a business of some sort and protection relates to classes of goods and or services

The symbols to the right are more American than Australian but can demonstrate a claim
Trademark | Patents and Registered Designs Patents and Registered Designs

 

 

 

 

 

Patents and Registered Designs


Patents are grantedto protect any device, substance, method or process that is new, inventive and useful

Innovation (formerly petty) patents – granted up to 8 years

Very complex area

Standard patents – granted up to 20 years



Registered design protect the unique visual appearance of a product

 

Confidentiality (Non-Disclosure) Agreements

Best way to protect trade secrets – know how

  • Restaurant client examples
  • Recipes KFC - Coca Cola

 

  • Business negotiations
  • Franchise – operations manuals

 

Employees and Contractors

Who owns what?

Employees
If work produced in pursuance of employment contract, then employer usually owns copyright
Examples – lecture notes in universities


Students
Generally own what they create
Cannot use their work or reproduce it without written assignment or permission
Encouragement to attribute quotes etc


Contractors
Deal with it in the contract

 

Internet pitfalls – Copyright Especially

Need to educate people about

• Cutting and pasting from works from internet


• Attributing works to authors


• Illegal downloads especially music/video files


• Need to attribute when using extracts

 

Who, what, when, where and why [e.g. in contracts]

Who owns what IP - wise?

Who owns the product?

Identify all property involved – consider a schedule or register

IP – Copyright - processes - confidentiality – staff versus contractor impact on ownership

Can Contractor use it? License it ? Royalties?

Moral rights – the issue of consent – changes

Foreground and Background IP

Reflect your policy in contracts

 

Tips & Questions

  • In a business, do an inventory of the types of Intellectual Property used, what is owned and what is licensed;
  • Decide what need protection (and where)
  • Have apt T&Cs to protect IP when dealing with customers and contractors;
  • Where necessary deal with IP in employment contractsTo Conclude

 

The Pudding Story

Unlike KFC and Coca Cola which has over 1100 TMs registered

 







 

“ Our aim is to achieve successful outcomes
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TIMOTHY EAKIN
PARTNER

The text of the slides and discussion
at the presentation / webinar is only
a summary and discussion of
particular facts and principles. It is not to be
taken as legal or commercial advice as to any
particular factual circumstances.
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It is with great pleasure, Eakin McCaffery Cox announces the promotion of
Peter Aked to the role of Equity Partner, effective 1 April 2016.
 
Peter joined the firm, in the role of Associate, in June 2008.
 
Peter was promoted to Salaried Partner in March 2012.
 
Peter practises in the Corporate – Commercial Group and has significant expertise in relation to securities and PPSA and in acting for mortgagees in both transactional and recovery contexts.
 
 

AMB crackdown on doctors providing Alternative Medicine


Introduction

The Australian Medical Board (AMB) is considering options for “clearer regulation of medical practitioners who provide complementary and unconventional medicine and emerging treatments”, and has issued a Consultation Paper on its proposals and called for submissions.

AMB proposals have potential to restrict and prohibit some currently available medical treatments and methodologies, particularly in the area of proactive and preventive care.

Submissions can be made until 30 June 2019. The discussion paper and draft proposals are available for download at the AMB’s site.



Increased Regulation Complementary and Unconventional Medicine

AMB acknowledges that there “is not yet widely agreed definition of complementary and unconventional medicine and emerging treatments” and presents two options in support of its proposal:-

“Option 1 – Retain the status quo of providing general guidance about the Board’s expectations of medical practitioners who provide complementary and unconventional medicine and emerging treatments via the Board’s approved code of conduct.

Option 2 – Strengthen current guidance for medical practitioners who provide complementary and unconventional medicine and emerging treatments through practice-specific guidelines that clearly articulate the Board’s expectations of all medical practitioners and supplement the Board’s Good medical practice: A code of conduct for doctors in Australia.”

To me, both are unnecessary as discriminatory and, the second is potentially prejudicial to patients. Maintaining standards in the interests of patient safety goes without saying.

However, I have issues with overreach, whether intended or not, and unintended consequences for patients of the proposals.



Inhibiting Prudent, Proactive Preventive Health Care

The proposals have real potential to inhibit the right of the public to undertake prudent, proactive preventive health care under the supervision of professionally trained integrative and or functional medical practitioners.

The cost savings and benefits of proper proactive care are inestimable.



Overreach – Hammer to Crack a Walnut?

Australia’s broader medical services now include views and methodologies from a range of cultures, not simply medical science from some traditional narrow sense.

I fear the current proposals have potential, if not intent, to threaten integrative and or functional medicine and so prejudicing the ability of medical practitioners providing that care to service the existing and developing needs of patients in a dynamic way.

The very concept of the regulation in the manner proposed seems to me to be a potential reversion to old-style trade union “closed shop” attitudes.



A Problem with Proposed Definition

The proposals involve a new definition, such as: –

Complementary and unconventional medicine and emerging treatments include any assessment, diagnostic technique or procedure, diagnosis, practice, medicine, therapy or treatment that is not usually considered to be part of conventional medicine, whether used in addition to, or instead of, conventional medicine. This includes unconventional use of approved medical devices and therapies”

The Code has no corresponding definition of “conventional medicine”.

The problem with the proposed definition is its laxity. In the absence of a corresponding definition of “conventional medicine, it just creates uncertainty. Potentially, anything not main stream (whatever that might be) could be excluded and rendered unlawful.

Medical practitioners, including those presently providing integrative and or functional medical care services, could be excluded from providing a range of types of diagnoses, services, treatments and/or from practice.

Most importantly, welfare of patients and members of the public who choose to take prudent, proactive, preventive steps to maximise their long term health and functionality, could be put at risk by too narrow a view taken by “traditional medicine”.

The proposal being considered by AMB is, in my view as a legal wordsmith, highly flawed legally.



Who does it protect? What does it do for patients?

With the Mayo Clinic acknowledging the benefits of “integrative care”, the AMB should be reconsider the tenor, tone, nature and wording of its current proposals. They lend themselves to the suggestion that AMB seeks more to protect the status quo, than the needs of patients.

The AMB proposals seem to me to lack proper respect to the medical needs of the many “patients” who have been and continue to be let down by “conventional medicine and treatments” and conventional medical practice.

Do not the AMB proposals demonstrate that it is unable or unwilling to maintain pace with current trends and practices in the dynamic field of medical diagnosis and proactive and preventative care, so increasingly important to so many patients?

In my view, AMB has no right, by means of these inappropriately drafted proposals, to prevent a person from taking proper proactive and preventative care under the guidance of a medical practitioner having training in the field. This is especially so when being paid for outside the Medicare system, as is now available from “integrative” medicine.



Alternatives can be beneficial

An example within my knowledge is patients let down by “traditional” medical practice who are at risk of dementia being denied access to integrative medical practitioners who can and do treat those with or at risk of developing dementia with diet and vitamins with measurable success.

This potential prohibition of proactive and preventive care that supports both people with or at risk of suffering various types of dementia puts patients and their carers or families at undue risk and trauma

The terminology set out in the discussion paper and its persistent references to cost issues suggest, to me, an intent to better preserve the traditional status quo – and, query the relevance of the fee regime under Medicare – rather than an objective view of safe medical practices based on scientifically supported diagnostics.

Australian medical practitioners have, for many years, challenged traditional medical thinking. Had they not, there may not have been medical progress. Some might be seen as going back to basics and treating a patient, rather than treating the patient’s symptom by reference to a 10 minute consultation with a general practitioner.

Many who have found traditional medical practice has failed them, have found relief, cure and/or benefit by resort to various forms of complementary and unconventional medicine.



Submissions can be made

If you, or a member of your family, is a person who has found benefit in alternative therapies, you may find it prudent to make submissions to the AMB with a view to withdrawing the proposal. Submissions should not mention particular doctors.

Submissions could address one’s beneficial personal experience of “Complementary and Unconventional Medicine” and/or address the 11 particular points raised by AMB at pages 3 and 4 of its Discussion Paper.
 

Disclaimer: The text of the paper is only a summary and discussion of particular facts and principles. It is not to be taken as legal, medical or commercial advice as to any particular factual circumstances. Visit the author’s blog for the long version of this article.
 

Gregory Ross, LLB, has been a Partner at Eakin McCaffery Cox Lawyers since 2010 and was Special Counsel at the firm between 2001 and 2008. Prior to his return as Partner he was Special Counsel at Shaw Reynolds Bowen & Gerathy and has had a part-time appointment with the Independent Commission Against Corruption. Gregory’s legal practice reflects his many years of legal, commercial, policy and probity experience in NSW and beyond. As an Accredited Specialist in Government and Administrative Law, Gregory advises government bodies to develop legislation, contracting and process arrangements. He also leads the firm’s Intellectual Property practice, advising on issues including copyright, licensing, trademarks and confidentiality agreements. He advises on contracts with entities and enforcement of IP rights in India. Contact Gregory at This email address is being protected from spambots. You need JavaScript enabled to view it. or connect via LinkedIn and Twitter .

You can also connect with Eakin McCaffery Cox Lawyers via LinkedIn .

 

Originally Published 09.05.19 by Legalwise

Source: https://legalwiseseminars.com.au/amb-crackdown-on-doctors-providing-alternative-medicine/