Can We Protect How We Do What We Do? A Consideration of Business Method Patents in Australia and Europe

In the long history of monopolies, business method patents area novel and recent edition. In the Digital Age, where time ismoney and speed is everything, innovative methods for undertakingbusiness are as important to a business as the products or servicesit provides to its clients. In recent years several reviews,conducted in both Australia and internationally,⁴ have questionedthe appropriateness of patenting business methods. This paperreviews the availability of business method patents in Australiain light of the 2006 decision of the Full Court of the FederalCourt in Grant v Commissioner of Patents,⁵ which confirmed theneed in Australia for a ‘useful product’ to issuefrom the working of a method (business or otherwise) in orderfor the method to be patentable. This paper will review argumentsboth criticising and defending business method patents and considerwhether business methods warrant special treatment.     

Freakonomics: Scholarship in the Service of Storytelling

Freakonomics: A Rogue Economist Explores the Hidden Side ofEverything by Steven D. Levitt and Stephen J. Dubner is certainlypopular. Indeed, my search for something comparable took meback more than 120 years.¹ Even with the uncertainty about whatconstitutes a best seller, it is clear that the book has reacheda huge audience, especially for a book about "economics." AsI write this, it has been on the New York Times best-sellerlist for 46 weeks, and having started on the Publisher’sWeekly Hardcover Nonfiction best-seller list in the 12th positionon April 25, 2005, it has hovered in the top ten thereafter.Moreover, as reported on the Freakonomics web site, the bookhas garnered a large international audience, and the book ison various "best of" lists. Levitt and Dubner have sought abroad and diverse audience for their collection of stories:Levitt has been on "The 700 Club" (a talk show by conservativebusinessman and religious broadcaster Pat Robertson) and "TheDaily Show with Jon Stewart" (a center–left parody ofthe news and news reporting) among other places. Both the authorswrite a column for the New York Times Magazine as well as participatein an active blog (just navigate from the book’s web siteto the URL http://www.freakonomics.com, where, among other things,they respond to a large number of readers’ inquiries²).The book comes complete with more than 20(!) pages of referencesand citations as diverse as a radio talk show caller’sunverified claim that her niece was named "Shithead" (pronouncedSHUH-teed) as well as Kenneth Arrow’s "A Theory of Discrimination"and includes a two-and-a-half page tabulation of average yearsof mother’s education by child’s first name. Theextensive footnotes should not mislead: Freakonomics does nottake its subjects very seriously. In Freakonomics, Levitt’sscholarship and the scholarship of others are put in the serviceof telling a "good story" rather than the other way around.Indeed, if the many reviews of the book are any guide, manyfind the book "entertaining" even if they felt that "Levitt’sonly real message is to encourage confrontational questions"(Berg, 2005). One reviewer found the stories so compelling thathe went so far as to suggest that "criticizing Freakonomicswould be like criticizing a hot fudge sundae" (Landsburg, 2005).     

Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn

This Note is intended to stand as a short supplement to thecompelling article by Stefan Vogenauer entitled, ‘A Retreatfrom Pepper v Hart? A Reply to Lord Steyn’ published inthe Journal at the end of 2005.¹ In his article, Professor Vogenauercalls in question the argument advanced by Lord Steyn in hisarticle in the Journal, entitled ‘Pepper v Hart: A Re-examination’.²In that article, Lord Steyn called for a retreat from the decisionof the House of Lords in Pepper v Hart³ concerning the circumstancesin which reference may be made to Hansard as an aid to statutoryconstruction and for a reinterpretation of the decision in linewith a theory that a Minister speaking in Parliament who givesan explanation of the meaning or effect of a clause in a Billshould be taken to create a binding legitimate expectation thatthe executive will apply the provision, once enacted, in thatsense. In this Note, I express my agreement with Professor Vogenauer’sargument, and seek to support it with some additional pointsunder three heads: (1) the proper interpretation of Pepper vHart and its status as authority; (2) the basis in principlefor adhering to that interpretation; and (3) conceptual difficultiesattached to Lord Steyn’s legitimate expectation thesis.     

The Concluding Observations of United Nations Human Rights Treaty Bodies

The seven principal United Nations-sponsored human rights treatiesstipulate that States Parties submit periodic reports to therespective treaty monitoring bodies (or ‘committees’)¹on the implementation of their treaty obligations. Followingthe review of a report, the treaty body in question issues aset of ‘concluding observations’, containing itscollective assessment of the State's record and recommendationsfor enhanced implementation of the rights in question. Arguably,the issuance of concluding observations is the single most importantactivity of human rights treaty bodies. It provides an opportunityfor the delivery of an authoritative overview of the state ofhuman rights in a country and for the delivery of forms of advicewhich can stimulate systemic improvements. Its significanceis all the greater now that the only accounts of the reviewof periodic reports which appear in the annual reports of thetreaty bodies are the adopted concluding observations.² Thisarticle seeks to test key aspects of the quality of concludingobservations. The analysis is set within the framework of reviewof the development of the practice.     

The Best Interests of the Child? Is the Best Interests of the Child in the Best Interests of Children?

The writings of Goldstein, Freud and Solnit, particularly someof the concepts they developed, have exercised a profound influenceon our thinking about children. A new, revamped, final, authoritativeedition presents the opportunity for critical re-assessment.The author finds a partial analytical framework, a dated imageof children, a narrow concept of children's rights, triggersfor intervention which leave children dangerously exposed and,above all, a sense diat events have moved on leaving the mostinfluential text of this generation firmly rooted in the ideas,problems and concepts of the last. The publication in one revised volume of the landmark trilogyof Beyond, Before and In¹ provides an excuse, if one were needed,to assess the impact and re-evaluate the arguments containedwithin the three monographs and now compressed and updated.Whether or not one agrees with all, or even any, of the ideascontained within Best Interests (as I shall now call the collection),and I shall criticize both applications and implications, theconcepts have impressed themselves, perhaps indelibly, on ourthinking about children. Like it or not, anyone thinking aboutchild law or policy, the relation between parents and children,the state and family, has to grapple with concepts like ‘leastdetrimental alternative’, the ‘psychological parent’,a child's sense of time and others of the rich ideas which permeateBest Interests.²     

The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on the Internet: A Comparative Case Study of Hong Kong and Singapore - Two Differing Asian Approaches

Almost a decade ago, the electronic commerce revolution began,led by such companies as Amazon.com and Ebay.com. These companieshave grown into the internet business giants they are today,diversifying in the products they sell, the services they provideand the jurisdictions they conduct business in. However, asidefrom these rare examples, most medium and small internet-basedbusiness enterprises have grown with the dot.com bubble anddissolved when it burst mid-way through the decade. Now, atthe 10th Anniversary of Electronic Commerce, after we have seenthe dot.com way of doing business launch like a rocket and plungelike a comet, subsequently emerging into a more cautious, butno less potential, avenue of doing business, other challengesnow face the industry as a whole to retain and obtain customers.Internet users are becoming increasingly wary of online transactions.²The irony is that as internet users become technologically savvy,they also become more aware of the dangers which connectivityentails and this inhibits their online behaviour. Chief amongthese concerns, and second only to cybercrimes, is the maintenanceof privacy in the context of the protection of personal information,particularly from the unsavory elements trawling the cyberworld.For cyber-trade and the e-commerce market to grow, and for thecontinued efficiency and utility of the internet for G2C andB2C transactions,³ governments and industries must re-instillthe trust and confidence of internet users both in commercialand non-commercial interaction.⁴     

AHRA does not protect device distributor against copyright claims arising from broadcaster role

In a case of first impression, and one of the few cases interpretingthe statute at issue, a district court in New York City hasheld that the Audio Home Recording Act, 17 USC sections 1001et seq. (‘AHRA’), does not immunize a distributorof digital audio recording devices (DARDs) from copyright liabilitywhen the infringement claims are based on the distributor'sallegedly infringing activity in its simultaneous role as asatellite radio broadcaster. The case illustrates the ambiguousnature of digital transmissions, which can be treated as distributionsof musical works as well as digital performances.     

Just 'Cause You're Smarter than Me Doesn't Give You a Right to Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis

Joseph Raz's famous theory of authority is grounded in threeclaims about the nature and justification of authority. Accordingto the Preemption Thesis, authoritative directives purport toreplace the subject's judgments about what she should do. Accordingto the Dependence Thesis, authoritative directives should bebased on reasons that actually apply to the subjects of thedirective. According to the Normal Justification Thesis (NJT),authority is justified to the extent that subjects are morelikely to comply with right reason by following the authority'sdirectives than by following their own judgments about whatright reason requires.¹ In this article, I consider a number of ways in which NJT mightbe construed as a justification for authority. First, I evaluateNJT construed as a principle that would provide a practicaljustification for an individual to accept or recognize a particularperson or persons as a preemptive authority. Second, I evaluateNJT construed as a principle that describes the conditions underwhich a state or legal system is morally legitimate. I arguethat NJT is true under none of these interpretations.²     

Dodging the Donor Daddy Drama: Creating a Model Statute for Determining Parental Status of Known Sperm Donors

Despite recent innovations in alternative reproduction technology and the increased use of artificial insemination procedures, courts and legislatures have been unable to develop a clear and consistent test to establish the parental rights and obligations of sperm donors. As a result, there are mixed outcomes in cases where intended parents seek child support from an unsuspecting donor or when donors petition the court for visitation with their biological children. This Note seeks to resolve the ambiguity in determining sperm donors’ parental status by proposing a model state statute that makes nonpaternity the default rule. Under the statute, sperm donors would not be subject to any of the parental rights or obligations of a traditional biological father. However, the presumption of nonpaternity could be overcome if the parties agree, in writing, prior to the insemination. Further, the model statute provides an exception to the default rule if the donor has played an active role in the child's life. Adopting this model statute will not only facilitate a market for sperm donation but also make donor rights and obligations clear from the onset.

Key Points for the Family Court Community
• Today, infants born using artificial reproduction technology (ART) represent more than one percent of children born in the United States annually.
• When a donor is anonymous, the law is clear: the donor is not a legal parent. However, the law regarding known donors is less straightforward. Depending on the state and the particular circumstances, the parental status of a known donor is questionable.
• The ambiguity in the law creates confusion and disagreement among the parties in a donor agreement. By comparing factually similar cases, in which courts interpreted donor statutes with identical language, in completely opposite ways, it is easy to see the unpredictability in ART cases.
• The proposed model statute provides unambiguous legislation that sets out a clear standard to be used in determining the parental status of known donors. If adopted by state legislatures, courts across the country would finally have a consistent rule to apply, leading to less confusion and contradictory rulings.
• The key issue is honoring intentional parentage and the proactive choice to use ART to have a child on one's own terms.

     

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rightsdiscourse. It does so in light of concern surrounding corporatedistortion of the Universal Declaration of Human Rights (UDHR)paradigm,¹ and in light of the fact that corporations can claimshelter under human rights documents, particularly—asrecently discussed by Emberland²—the European Conventionof Human Rights and Fundamental Freedoms (ECHR). The authoroffers a critical exploration of corporate human rights claims(and some arguments advanced in their favour), and identifiesthe phenomenon of legal disembodiment (or ‘quasi-disembodiment’),linking it to both a genealogical account of human rights andthe nature of liberal legal personality. This reading of humanrights genealogy invites the reader to focus on a series ofparadoxes surrounding human rights, including their nature asa form of sacral construct, and locates human rights at an entrenchedand challenging interface between historical and contemporarypatterns of inclusion and exclusion. Quasi-disembodiment emergesfrom the analysis as a key conceptual conduit for the legalreception of corporate human rights claims. Linking the ECHRto the liberal human rights tradition, the author suggests thatnotwithstanding judicial protection of corporations as beneficiariesof ECHR protection, it remains essential to engage in a normativecritique of the very notion of corporate human rights. Beneathhuman rights law (and the related closures of legal discourse)it is possible to trace a human rights-oriented critique thatadopts human embodiment (and its quintessential link with humanvulnerability) as the ethical foundation of human rights.³ Emphasisingembodied vulnerability as the foundation of human rights yieldsa significant and ethically relevant distinction between corporationsand human beings—a distinction with intriguing possibilitiesfor the future theorisation of human rights—and one thatarguably problematises the corporate use of human rights discourse.     

Trustees: how exclusive are you?

There has been an important recent development for trusteesin relation to the general position on clauses which seek toexclude or restrict a trustee's liability for failure to carryout properly their duties imposed by the trust instrument orlaw¹. Such clauses, known as Trustee Exemption Clauses, canbe a complete defence, or at least a deterrent to claims inthe increasingly litigious environment in which trustees operate.This article examines the Law Commission's recommendations onexemption clauses applicable in England and Wales.     

Injunctive relief in US patent practice

Legal context. Injunctive relief is available in civil actionsin the United States. Patent litigation is no exception andthe US patent statute explicitly permits it. Because it is aneffective remedy, injunctive relief is commonly sought togetherwith the monetary (legal) remedies which are available to patentowners when enforcing patent rights. Key points. On 15 May 2006 the US Supreme Court in eBay, Incet al v MercExchange, LLC altered the prevailing practice sayingthat ‘the decision whether to grant or deny injunctiverelief rests within the equitable discretion of the districtcourts, and that such discretion must be exercised consistentwith traditional principles of equity, in patent disputes noless than in other cases governed by such standards’. Practical significance. This article will focus on the availabilityof permanent injunctions in patent infringement actions in lightof the Supreme Court's recent ruling in eBay, Inc et al v MercExchange,LLC.     

Editorial

Professor Maitland liked to point out that the beginnings ofthe trust are discernible in a ‘slight but unbroken threadof cases, beginning while the Conquest is yet recent.’¹This forensic Methuselah retains its vitality today becausereams of contractual boilerplate cannot compete with the efficiencyof equity's default rules. These were famously expressed bythe great Chief Judge of the New York Court of Appeals—laterto become a Justice of the Supreme Court of the United States—BenjaminCardozo, in Meinhard v. Salmon, 249 NY 458, 464 (1928):

Manyforms of conduct permissible in a workaday world for those actingat arm's length, are     

Discussion of "Using Stationarity Tests in Antitrust Market Definition"

Send correspondence to: Daniel Hosken, Federal Trade Commission, 600 Pennsylvania Ave. NW, Washington, DC 20850; E-mail: dhosken@ftc.gov. The first 150 words of the full text of this article appear below.

The Unorganised Worker: The Decline in Collectivism and New Hurdles to Individual Employment Rights

The ‘unorganised’ worker (neither unionised norcovered by a collective agreement) is the norm in Britain, especiallyin the private sector, which employs about 70% of employees.In 2003, union membership was down to 29.3%, and 18.2% in theprivate sector. Collective bargaining covers 72.2% of workersin the public sector, but only 22.1% in the private,¹ leavingstatutory regulation of individual employment rights as theonly protection for the majority of workers. In this context,access to these rights, and ease of enforcement, while neverpreviously straightforward, are becoming increasingly crucial.The individualisation of the employment relationship, whichbegan before New Labour returned to power in 1997, has continuedwith little restoration of collective rights and new legislationenhancing individual rights. The government’s commitmentto neo-liberalism and maintaining a ‘flexible’ labourforce has ensured that these further rights are circumscribedby new legislation, which places them further out of reach.This paper discusses this process in the context of the difficultiesworkers already face in obtaining support and guidance, thelack of affordable professional legal advice and representationand the impediments to providing an adequate service by theunder-funded voluntary sector.     

The Jean Mpambara Case: Outlining "Culpable Omissions" in International Criminal Law

The Trial Chamber of the International Criminal Tribunal forRwanda, through its judgment in Jean Mpambara case, outlinedthe significance of culpable omissions, outlining three broadoffences under which it could be used as evidence. While itis clear that an omission may be considered as evidence of aidingand abetting or joint criminal enterprise, it is still not clearwhether omission of failure of duty to prevent or punish willbe considered as part of Article 6(1) of the statute as doneby the other trial chambers,¹     

Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust

Modern antitrust policy has a ‘love hate’ relationshipwith non-standard contracts that can overcome market failure.On the one hand, courts have abandoned various per se rulesthat once condemned such agreements outright, concluding thatmany non-standard contracts may produce benefits that are cognizableunder the antitrust laws.¹ The prospect of such benefits, itis said, compels courts to analyze these agreements under theRule of Reason, under which the tribunal determines whethera given restraint enhances or destroys competition.² At thesame time, courts, scholars, and the enforcement agencies haveembraced methods of rule of reason analysis that are undulyhostile to such agreements.³ In particular, courts and othersare too quick to view such agreements and the market outcomesthey produce as manifestations of market power. This articleseeks to explain why these agreements are still the object ofundue hostility.     

Clear, Simple, and Precise Legislative Drafting: How Does a European Community Directive Fare?

In 2001, Martin Cutts redrafted Toy-Safety Directive 88/378/EEC¹in plain language. He criticized the language of that Directiveas being archaic legalese.² He added that Directives, as a whole,were poorly drafted.³ The European Commissions Legal Servicerejected his criticisms. It stated that it had published theEuropean Commission’s plain language guidelines⁴ afterDirective 88/378/EEC had been drafted. In a previous articlein the Statute Law Review,⁵ Butt and Castle’s⁶ plain languageguidelines were explicated using examples from Directive 2002/2/EC.⁷In this article, their guidelines are applied to the whole ofthat Directive to see if its language is ‘clear, simple,and precise’.⁸ The criticisms made in the previous article,⁹combined with those made in this article, suggest that the draftersof Directive 2002/2/EC¹⁰ have not yet mastered the skill ofwriting in ‘clear, simple, and precise’ language.     

The ongoing design duty in Universal Music Australia Pty Ltd v Sharman License Holdings Ltd Casting the scope of copyright infringement even wider

The Australian Federal Court case of Universal Music AustraliaPty Ltd v Sharman License Holdings Ltd (‘Sharman’)¹is the latest in a series of peer-to-peer (P2P) filesharingcases from various jurisdictions that has found the softwaredistributor/technology provider liable for copyright infringement.² Sharman followed a few months after the groundbreaking US SupremeCourt case of MGM Studios v Grokster Ltd ³ (‘Grokster’)that had acknowledged the Sony safe harbour for technology providersbut also introduced an inducement of infringement doctrine todeal with reprehensible conduct of infringers. While both cases involved similar technology and shared a numberof similarities on the facts and legal principles⁴, a closerexamination of Sharman shows that the net of copyright infringementin P2P filesharing is cast wider than that in Grokster. The effect of Sharman is an increased burden on the technologyprovider and the potentially tremendous consequences on innovationdue to the lack of a clear safe harbour as well as the wideningof the design obligation.     

Which law applies? A reply to Professor Torremans

The first 150 words of the full text of this article appear below.

‘A book may be good for nothing; or there may be onlyone thing in it worth knowing; are we to read it all through?’(Samuel Johnson) This section is dedicated to the review ofideas, articles, books, films and other media. It will includereplies (and rejoinders) to articles, the evaluation of newideas or proposals, and reviews of books and articles both directlyand indirectly related to intellectual property law.

In a recent article,¹ Professor Torremans argues that the countryof origin (sometimes called the lex originis) should be thelaw applied to authorship and ownership of copyright.² There is no doubt that several countries do apply the countryof origin to initial ownership and authorship of copyright works.Citing both the Austrian and Belgian Codes on Private InternationalLaw as examples,³ Professor Torremans also mentions the decisionof the US Second Circuit of Appeals in . . . [Full Text of this Article]