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Discuss the manner of manufacture requirements prescribed under the Patents Act 1990 (Cth)and advise Aria if “A-Well” could potentially fall within the concept of manner of manufacture according to this Act; and

Intellectual Property Law

Take-Home Assessment

  1. This assessment item must be submitted to the Turnitin portal on the course Canvas site by Thursday 2 June 23:59 pm. Any paper that is not submitted through the Turnitin portal by this time without an extension is subject to late penalties.
  • Late penalties set out in the LAWS6086 Course Outline will be applied where the assessment item is submitted after the due date/time and no extension of time is granted in accordance with the University’s Adverse Circumstances policies and procedures.
  • The absolute word limit will be 2000 words, meaning that the word limit is 1818 words ± 10% = 2000 words maximum. A word limit restriction will not apply to each question.
  • Footnotesmustonlybeusedtoprovide references, not substantive commentary.  Footnotes will not be counted when determining the total number of words in a paper, as long as they only contain citation information. However, all other words (including headings) will be counted when determining the total number of words in a paper.

Please contact the Course Coordinator for this part of the course if you have any questionsregarding this assessment item atsuzana.nashkova@newcastle.edu.au).

ASSIGNMENT QUESTIONS

All of the below questions are compulsory.

QUESTION 1 [ 25 marks]

Aria Welsh is an owner of a small business located in Newcastle called “Well-Shness”. She invented what she believes is a unique water bottle called “A-Well” and is interested in protecting her “invention” by applying for patent protection in Australia. As an entrepreneur, Aria understands that patenting is an expensive process and is hence not sure if she has the financial ability to make such an investment given that her business is small and not very profitable. Aria is aware that trade secret protection may be a better alternative from a financial point of view, but she also knows that “A-Well” can be easily reverse engineered, so relying on a de facto secrecy monopoly might not benefit her in the long term.

Ariahas heard from one of her friends that you are a lawyer who has a good knowledge of Australian Patent law and you have previously done an internship in a patent attorney’s office.She has scheduled a meeting with you to discuss the details of “A-Well” hoping to get a “provisional assessment” as to whether her “invention” can meet the requirements and obtain a standard patent in Australia. In the course of your discussion, she informs you that her water bottle includes a specialfeature that enables users to place and keep their phones in a cavity integrated into the water bottle. She further notes that the water bottle has integrated a phone charging apparatus connected to an inbuilt power bankthat enables users to charge their phone when the same is placed in the cavity. Before your meeting ends, Aria informs you that there are a few similar products in the market, however, “A-Well”has some essential componentsthat are unique.

Considering the facts in this scenario, addressthefollowingtwo (2) questions

Question1(A) = [12.5 marks]

  1. Discuss the manner of manufacture requirements prescribed under the Patents Act 1990 (Cth)and advise Aria if “A-Well” could potentially fall within the concept of manner of manufacture according to this Act; and

Question1(B) = [12.5 marks]

 

B)   Discuss the applicability of the requirements under Section 7.2 of the Patents Act 1990 (Cth) and explain to Aria the steps a patent attorney will need to follow to prove to IP Australia that “A-Well” meets the inventive step requirements.

In your answer, make sure you refer to the appropriate legislation, case law and/or regulative provisions.

[Total for question one _/25 marks]

QUESTION 2 [ 25 marks]

Josh White is the owner of a well-known restaurant in Sydney called “La Mange”. The restaurant was established by Josh’s grandfather and has been operatingsuccessfully for more than 60 years. The success of the restaurant has been attributed to the special sauce called “La Saveur”which the White family has been using when serving seafood. Many customers have over the years inquired about the “La Saveur”ingredients, yet the White family kept it as a trade secret and never disclosed the recipe to anyone except for their two chefs under a strict confidentiality agreement.

“La Mange”has a very nice and spacious outdoor setting, which can be easily adapted as an open-air cinema. On Sunday, 15January 2022, the restaurant was due to host around 150 guests for a dinner before the screening of the premiere of the new TV Show – Luxe Living. Almost all of the guests who were invitedwere local “celebrities” and this event was set to attract great publicity for the restaurant.

John and his team worked tirelessly to organise the event and accommodate the preferences of their guests. Everything except for the food appeared to be well prepared on 14 January 2022. When Josh came to work on the morning of15January, he received a phone call from his two chiefsMyla and Ethan who told him that they have contracted COVID-19 and are not able to come to work.

Josh turned in distress to Mark, one of his employees and an aspiring “commis chef”,[1] and asked him to take the role of chef for that event. Mark agreed to help Josh and requested the recipe for “La Saveur”in order to be able to prepare some of the meals. Josh was aware of the fact that it is Sunday so he cannot reach out to his lawyer and ask for a copy of a confidentiality agreement, so he disclosed the secret recipe to Mark and told him explicitly that the information is confidential. The event turned out to be a huge success and Josh thanked his staff, especially Mark for their dedicated efforts. Josh particularly acknowledged Mark’s contribution to this event in a speech he gave during Mark’s farewell party at the end of January 2022.

A few months after Mark left “La Mange”, Josh discovers that a new restaurant in Sydney called “La Maison” is using and also selling jars of the famous “La Saveur” sauce. There has been some speculation that the owner has signed a million-dollar contract with a manufacturer and the sauce will soon reach the shelves of the biggest supermarket chain in New South Wales. Marine who is Josh’sfriend told him that his former employee Mark is the owner of that restaurant. Josh went to “La Maison” and confronted Mark about the use of his trade secret without authorisation. Mark replied that he is under no such obligation given that unlike Myla and Ethan he has not signed a confidentiality agreement with respect to Josh’s trade secret.

Josh is devastated. He is concerned that “La Mange”will lose significant profitability and annoyed that another restaurant is profiting from his family’s recipe. He comes to your legal office asking if you can help him somehow.

Considering the facts in this scenario, addressthefollowingtwo (2) questions

Question2(A) = [12.5 marks]

  1. What, if any, legal mechanism/s could be used to potentially impose liability on Mark for the (mis)use of Josh’s trade secret in the absence of a confidentiality agreement? and

Question2(B) = [12.5 marks]

  • Critically analyse whether Josh is entitled to some form of relief in this scenario against Mark and/or “La Maison”?

In your answer, make sure you refer to the appropriate legislation, case law and/or regulative provisions.

[Total for question two _/25 marks]

[Total for Q1 and Q2 _/50 marks]

[1]The term “commischef” is employed here in its ordinary meaning to designate a junior member of the kitchen staff who is undergoing some culinary training or is just about to complete it.

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