Intellectual Property, Technology & Media Newsletter – June 2022

15 June 2022

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news.

Update – Full Court decides that artificial intelligence cannot be an inventor under the Patents Act 1990 (Cth)

In September last year, we reported on the decision in Thaler v Commissioner of Patents [2021] FCA 879 where the Federal Court found that an artificial intelligence (AI) system may be an inventor under section 15(1)(a) of the Patents Act 1990 (Cth) (Act) and section 3.2C(2)(aa) of the Patents Regulations 1991 (Cth) (Regulations) and therefore named as an inventor on a patent application.

The decision was subsequently appealed by the Commissioner of Patents and the decision of the Full Court of the Federal Court of Australia (Full Court) was handed down on 13 April 2022, overturning the decision of the Federal Court. It was unanimously found that an AI system could not be considered an inventor on the basis that ‘only a natural person can be an inventor for the purposes of the Patents Act and Regulations’ (Commissioner of Patents v Thaler [2022] FCAFC 62, 113).

In coming to this decision, the Full Court referred to the High Court case of D’Arcy v Myriad Genetics Inc [2015] HCA 35 and the importance placed on ‘human action’ Commissioner of Patents v Thaler [2022] FCAFC 62, 116.

This decision is consistent with the approach taken in most other countries including the US and the UK, which have all determined that an AI system cannot be an inventor.

This article was written by Jennifer Huby, Partner and Tiana Totaro, Graduate-at-Law.

The assignment of copyright in the Aboriginal Flag

On 25 January 2022, the Australian Government made the announcement about the Aboriginal Flag being available for public use following the assignment of copyright from the creator, Harold Thomas, for approximately $20 million. This means that it can be used for commercial and non-commercial purposes without the need to pay any fees.

Click here to read more.

Facial recognition technology and the law

Over the past few years, the development and use of Facial Recognition Technology (FRT) throughout Australia has grown exponentially. In Australia, FRT is often used by banks and telecommunications companies for identity verification purposes, and is used extensively by immigration authorities to verify the identity of passport holders at international borders/airports, as well as by law enforcement agencies throughout Australia for crime prevention and suspect identification purposes.

The use of FRT is currently regulated by various state and territory legal frameworks.

Click here to read more.

A picture is worth a thousand words

A recent decision of the Federal Court of Australia raises a number of important issues which will be applicable to developers, agents and purchasers alike, in relation to marketing renders and ‘artists impressions’.

Click here to read more.

In case you missed it, the following articles were recently written and published by our team:

.au direct is here

From 24 March 2022, second level .au domain names became available, offered by the .au Domain Administration (auDA). The priority allocation period for the second level .au namespace runs from 24 March to 20 September 2022.

If you apply for priority status, your eligibility to hold your existing domain name will be verified at the same time. Accordingly, businesses should take this opportunity to conduct an audit of their domain name portfolios, review the Australian presence eligibility criteria and ensure that registration details are accurate and up to date.

Click here to read more.

Courts find that F45’s computer operated exercise stations scheme is not patentable

On 15 February 2022, the Federal Court of Australia handed down the decision in F45 Training Pty Ltd v Body Fit Training Company Pty Ltd (No 2) [2022] FCA 96 in which two patents owned by F45 Training Pty Ltd (F45) were held to be invalid.

The decision preserves the position that mere business methods are not patentable.

Click here to read more.

The new TGA advertising code: What you need to know

On 1 January 2022, the Therapeutic Goods Administration (TGA) enlivened a new Advertising Code (Code). It was reported that this was a move to ‘crack down’ on social media influencers by banning ‘paid or incentivised testimonials for health products’.

Although many of the updates to the Code simply clarify wording and definitions, there are three main areas where substantive changes can be seen. These are: mandatory statements, testimonials and endorsements, and sample products.

Click here to read more.

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