Intellectual Property Law

We act in the following intellectual property (IP) matters:

Copyright
Trademark
Assignment of IP
Exclusive licences of IP
Non exclusive licences of IP
Non disclosure (confidentiality) deeds and agreements

We also provide advice on matters such as:

Company names
Business names
Domain names
Social media accounts

Patents

Patents require the expertise of an expert patent lawyer. At Ludwig Lawyers, we do not act in any patent matters.

We do not support patents on life.

Plant Breeders Rights

At Ludwig Lawyers, we do not act for anyone seeking to have a plant breeders rights granted.

Plant varieties were developed in the public domain over thousands of years. With the privatisation of public seed banks, seeds and plant cultivars were transferred to private interests. We believe that plant varieties belong in the public domain and that the plant breeders rights legislation should be abolished.

Resources

Designs

Trademarks and Domain Names

Patents - Australia

Patents Act 1990 (Cth)
Patents Regulations 1991 (Cth)
IP Australia and AusPat
Inquiry into Gene Patents, 26 November 2010 (completed inquiry)
Patent Amendment (Human Genes and Biological Materials) Bill 2010 (completed Senate Inquiry). Unfortunately, the Parliament never voted for the Bill, and it lapsed. The Dissenting Report is worth reading, and our MPs should have relied on this Dissenting Report and should have enacted this Bill. Watch Dr Luigi Palombi explain the Bill at “Patenting of Genes - Ownership of Crops and Cures by Multinationals?” and at “What’s the Future of Food”.
Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) ("the Amendment Act"). The Amendment Act introduced a new "experimental use" defence into the Patents Act and a new definition of "useful" (see new section 7A of the Patents Act).
Cancer Voices Australia v Myriad Genetics Inc [2013] FCA 65, Federal Court of Australia, Nicholas J, 15 February 2013. This is a test case on whether gene patents can be granted in Australia, specifically whether a patent can be granted over the BRCA1 gene. Watch Prof Peter Cashman explain the law and the court case before the hearing and before the judgment was handed down: “Patenting of Genes - Ownership of Crops and Cures by Multinationals”. Unfortunately, the applicants lost the case. Nicholas J held that an isolated gene, in contrast to a gene in situ, is patentable. Ms Yvonne D'Arcy, the second applicant, appealed the case. The appeal was heard in August 2013 in the Full Federal Court in Sydney. Unfortunately, Yvonne D'Arcy lost the appeal before the Full Federal Court of Australia: see D'Arcy v Myriad Genetics Inc [2014] FCAFC 115 (5 September 2014). The Full Federal Court decision is contrary what the highest court of the United States decided on the same issue, namely, that isolated genes cannot be patented in the United States. See also the following news articles on the Full Federal Court of Australia judgment: "Australian federal court rules isolated genetic material can be patented - Decision is likened to ‘being allowed to patent oxygen’, as critics warn of serious repercussions for medical research", The Guardian, 5 September 2015, and "Calls for patent law reform after Federal Court judgment", ABC, 5 September 2014. Ms Yvonne D'Arcy has sought leave to appeal to the High Court of Australia. As at 25 September 2014, the High Court's decision whether it would grant her leave to appeal is pending.

Patents - United States

"Myriad Genetics" case. First instance: Association for Molecular Pathology v Myriad Genetics, United States District Court for the Southern District of New York (held: genes not patentable). Second instance: Myriad Genetics v Association for Molecular Pathology, United States Court of Appeals for the Federal Circuit (held: isolated DNA can be patented). Third instance: Association for Molecular Pathology v Myriad Genetics, Federal Court, second hearing, 16 August 2012 (held: isolated DNA can be patented). On 30 November 2013, the Supreme Court agreed to hear the plaintiffs' appeal of the Federal Circuit' ruling. Oral arguments were heard before the Supreme Court on 15 April 2013. See the transcript here. Myriad lost in The Supreme Court (the highest court in the United States) which decided on [insert date] that isolated genes cannot be patented: see [insert judgement details]
Prometheus case: Mayo Collaborative Services v Prometheus Laboratories Inc (Supreme Court of the Unites States, 20 March 2012)
“The Future of Food” - classic 1997 documentary on GM crops by Deborah Garcia

Patents - International

Patents - Canada

Monsanto v Schmeiser: First instance: Monsanto v Schmeiser 2001 FCT 256 (Federal Court). Appeal decision: Schmeiser v Monsanto [2004] 1 SCR 902 (Supreme Court). Watch Percy Schmeiser talk about the problems with GMOs (genetically modified organisms).

Plant Breeder’s Rights

Plant Breeder’s Rights Act 1994 (Cth)
Plant Breeder’s Rights Regulations 1994 (Cth)
IP Australia and PBR Search Database
International Union for the Protection of New Varieties of Plants (UPOV)
International Convention for the Protection of New Varieties of Plants (UPOV Convention)
Introduction to UPOV - slideshow on the definitions of “UPOV”, “Variety”, “Improvement”, “Benefit”, “Protection”, “Breeder”, “Exceptions” and “Conditions”