IP Overview of Austrailia

By International IP Law Firms, 2013,[Comprehensive Reports]

Patent

There are 3 types of patents in the United States: utility patent, design patent and plant patent. The United States Patent and Trademark Office (USPTO) issues patent certificates for the following three types of patents:

1. Utility Patent: Utility patent is the most common and most beneficial type for inventors. Only functional inventions can apply for utility patents. The inventions that may apply for patents include process, machine, and article of manufacture and composition of matter. Process can be method or new use of the invention.


On September 16th, President Obama signed the American Invention Act (AIA), which is revolutionary to the American patent law. The AIA makes four fundamental changes to the patent law: changing “first to invent” to “first to file”; adding four new procedures to challenge the validity of a patent; strengthening some infringement pleadings while canceling or alleviating some other pleadings; ruling out some patentable subjects. After 18 months, the AIA finally came into effect in March 2013.


2. Patent for design: Only the appearance design can apply for patent. The protection for design patent is limited to the appearance of commodities shown in the design.


3. Patent for plant: The plant invention applying for plant patent must be novel or special plant that is cultivated by means of asexual reproduction or sexual reproduction. One plant can only apply for one patent. The United States does not protect utility model.


Duration of Patent Protection

Utility and plant patent that files patent application on and after June 8th, 1995 enjoys the patent protection period of 20 years starting from the date of actual application. The protection duration for design patent is 14 years from the date of patent authorization.


For patent applications filed after May 29th, 2000, USPTO makes appropriate adjustment on the duration of patent protection in accordance with the time delay made by USPTO or inventors.


For patents that filed applications before June 8th, 1995 but got granted after June 8th, 1995, or patent that are still valid on June 8th, 1995, the patent protection duration will be the longer one of the following 2 terms: 17 years from the authorization date or 20 years from the application date.


Trademark

The current Trademark Law of the United States is the “Lanham Act” promulgated in 1948. The Act was last amended in October 1982. The trademark register by USPTO is divided into 2 kinds: principal register and supplemental register. At present, the majority of applications are for principal register. If the application is not accepted because of some reason, the applicant may re-register the trademark for supplemental register. 5 trademark samples shall be submitted in either principal register or supplemental register.
In accordance with the “Lanham Act”, trademarks or service marks of the goods or services designated by producers or sellers, which can distinguish the producers or sellers of the goods or services as well as distinguish the goods or services from those provided by other producers or sellers, are eligible to apply for principal register. The marks that can merely “distinguish between the applicant’s goods or services” can only apply for supplemental register.


Principal register has the procedure of opposition. If anyone thinks that the trademark in the Official Gazette will damage his interests, he may submit the opposition letter to the Appeal Board within 30 days after the Official Gazette is released. Supplemental register has no opposition procedure, but there is trademark revocation procedure, which is also published on the Official Gazette. Anyone who thinks the supplemental register damages his benefits, he may ask for repeal of this supplemental register.


Duration of Trademark Protection

The United States adopts the use approach for trademark protection. The duration of trademark protection is 10 years from the registration date, and it can be extended several times with each extension of 10 years. If the trademark has been used in the United States, application can be filed in accordance with the actual use. But related evidence as well as the date of use in the United States shall be submitted at the same time.


Copyright

The first copyright law issued by the Congress was the Copyright Act in 1790. Since then, many new versions have been released in response to the emergence of new technologies, and the copyright protection duration has also been extended. In the United States, the National Copyright Administration under the Congress Library takes charge of copyright issues. According to the courts’ understanding of the Paragraph 8 of Article I of the Constitution of the US, the purpose of copyright is to encourage the creation of works of public benefit. Therefore, if the public interest is conflicting with the interests of writers, the public interest prevails. This understanding has led to the principle of fair use.


In August 2008, the Federal Court of Appeal recognized for the first time open-source protocol as copyright agreement in the case of  Jacobsen v. Katzer .


The latest copyright law provides that the copyright protection period is 70 years after the author’s death, which is 20 years longer than the international practice regulated by Berne Convention. The copyright protection period is from 75 to 95 years if the work is collective work or was published before January 1st, 1978. Works published before 1923 belong to public domain.


(Source: International IP Law Firms)

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