Units

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Sample subject outline - 6 Week Teaching Period - 6 2012

Note: Subject outlines often change before the semester begins. Below is a sample outline.

Rationale

Intellectual property (IP) is an expanding industry, with companies increasingly seeking to protect their intellectual property in designs, inventions, trade marks and other assets. This expansion has unsurprisingly seen a tussle over the breadth of IP rights between owners, competitors, consumers and others. Critical to the resolution of these tensions and the process of defining the boundaries between competing rights holders is IP litigation. Accordingly, in addition to understanding the law and theory underpinning IP rights, it is necessary to be familiar with IP litigation strategies.

Aims

The aim of this unit is to enable you to understand the basic elements of IP litigation. This unit will include the study of the tools and remedies available in IP litigation as well as case studies of IP litigation strategies. You will be asked to identify the strengths and weaknesses of various case studies and to evaluate the appropriate IP litigation strategies that could be employed to develop the strengths or reduce the impact of the weaknesses.

Objectives

On completion of this unit, you will:

1. have a better understanding of the application of IP law and principle in practice;

2. have gained an in-depth understanding of the tools, remedies and strategies of IP litigation;

3. be able to critically evaluate IP litigation strategies and propose solutions to presented IP scenarios;

4. be able to research a particular topic in the area in some depth and present this research in a well-reasoned and analytical paper.

Content

The content of this unit is as follows.

Topic 1: Introduction

An outline of the concepts, principles and policies is necessary for a more informed IP litigation strategy;
Their interaction from the IP litigation perspective;
The need to conduct a mental IP 'audit' in every case at the outset;
Recognising the overlapping areas;
Related rights: the tort of passing off, consumer protection and common law confidence;
Knowing the trends in the various IP areas.

Topic 2: Forum and Venue

The jurisdiction of the courts - The Federal Courts and the State Courts;
Consideration of the Patents Act, Copyright Act, Trade Marks Act and Designs Act;
Venue generally;
Importance of venue in trade mark issues;

Topic 3: International Conventions and Factors impacting on IP litigation

The concept of the ¿qualified person¿ in copyright;
Patent enforcement;
Effect on damages by international infringements;
Australian United States Free Trade Agreement - copyright; patents;

Topic 4: The Parties

Who may take enforcement action?
Standing of licensees;
Overseas owners;
Exposure of directors of companies - the concept of authorisation.

Topic 5: Appeals

from decisions of the Registrar;
from decisions of the Commissioner;
to the AAT;
from single judge to the Full Court - the question of leave.

Topic 6: Unjustified or Groundless Threats

Implications in IP litigation;
The effect on onus;
The often missed element!

Topic 7: Pre-emptive actions

'Anton Pillar' type orders;
Ex parte injunctive relief;
Pre-action discovery: identity of party; identification of claim;
Interim orders to preserve property.

Topic 8: Interlocutory relief

Injunctions restraining/ mandatory;
Third party discovery;
Summary disposal of proceedings;
Separate determination of discrete issues; the 'Split trial';
Inspection of processes or property.

Topic 9: Restrictions on proceedings

The limitation issues;
Powers in relation to a pre-grant patent;
The Innovation patent - its restriction;

Topic 10: The Trial

Experts - their role in the various IP areas;
Non-expert observations - The judge's impressions;
The interaction between expert and non-expert observations;
The 'Skilled addressee' - individuals; teams;
Patents - identifying the 'essential integers';
Survey evidence;
The 'Split' trial;
Counsel as a witness

Topic 11: The Final Relief the Court may give

Injunctive;
Declaratory;
Damages;
Account of profits - when must an election be made? What information is necessary to make an assessment?
Delivery up;
Equitable principles - unjust enrichment.

Topic 12: Damages

Different approaches;
Problematic areas - overlap in the bases for damages;
Additional Damages.

Approaches to Teaching and Learning

This unit will be taught in a series of seminars led by the unit coordinator. Guest lecturers will feature for specific areas. Attendance at the seminars is essential.

The seminars are intended to achieve three objectives:

(a) the dissemination of knowledge about the seminar's topic;
(b) a detailed discussion about the legal issues related to that topic, and
(c) practice at problem solving case studies..

To obtain the greatest advantage, the acquisition of the relevant knowledge is primarily your responsibility before attendance at the seminars, which are then devoted to an overview, analysis and evaluation of the relevant primary materials. Your focus is on the interactive discussion of the issues. You are expected to have read the prescribed materials before attending the seminar and be capable of discussing them and the questions and exercises outlined in the Study Guide. The Study Guide is designed to focus on the most basic elements required to participate in the discussion - it is not a collection of every case or material that could remotely be relevant.

At intervals during the intensive, 20 minutes shall be allotted to a case study. The tools required to evaluate the case studies will have been the subject of preceding workshops. Comments and discussion on each case study will be encouraged on the following questions:

• what areas of IP are involved?;


• what are the potential risks of enforcement or infringement?;


• should any immediate steps be taken?;


• what other preliminary steps should be taken by the client in anticipation of litigation?

Assessment

Assessment in this unit is both formative (ie. designed to provide you with feedback) and summative (ie. designed to give you feedback and linked to your assessment).You will be questioned during the workshops about your understanding of key principles and your ability to critically assess such principles. Responses to these questions will provide you with immediate feedback on your progress and allow the teacher to suggest ways in which learning can be improved and focused. The discussions in the workshop will also provide you with the formative feedback you need to guide and focus your preparation for the major research paper. You will also be given feedback on your choice of topic by the lecturer at the same time as approval is given for your choice of topic.

These questions and discussions provide you with formative feedback of objectives (1) to (3).

Assessment name: Discussion Forum
Description: This is a measure of your contribution to the discussions of the group. It takes into account your demonstrated understanding of law and policy, problem-solving skills and communications skills.
Relates to objectives: This item of assessment is a measure of your attainment of objectives (1) to (3).
Weight: 20%
Internal or external: Internal
Group or individual: Individual
Due date: During Intensive

Assessment name: Project (applied)
Description: Short 1500 word advice on IP litigation. You will be assigned an activity based on a set of circumstances and be required to properly advise in writing a course of conduct in anticipation of, or in furtherance of your client's case. The activity will require you to make certain further investigations that will inform your advice as to the appropriate IP litigation strategy. This activity is given at the end of the second day of the intensive and due at the end of the fourth day, the last day, of the intensive teaching time.
Relates to objectives: This item of assessment is designed to address learning outcomes (1) - (3), but particularly (2).
Weight: 20%
Internal or external: Internal
Group or individual: Individual
Due date: Day Four of Intsv.

Assessment name: Research Paper
Description: Research paper of 5,000 words. You will be assessed on your demonstrated familiarity with relevant literature and its critical review together with synthesis of this material into a coherent argument/discussion and the level of critical ability revealed by the analysis. Your research paper should comply with the rules for the presentation of research papers and projects in the section on "Guidelines for Presentation of Research Papers and Research Projects" in the Postgraduate Student Information Booklet. The School of Law has produced its own citation guidelines. These may be accessed at http://www.citewrite.qut.edu.au/QUT-Legal-Reference-Style-Guide.pdf. These guidelines are recommended for all students undertaking postgraduate studies.
Other citation guides may be used, after written approval to do so from the unit coordinator.

The research paper topic will be approved in principle by the unit coordinator and is due eight weeks after the end of the intensive.
Relates to objectives: This item of assessment is a measure of your attainment of all learning outcomes.
Weight: 60%
Internal or external: Internal
Group or individual: Individual
Due date: 8 Wks After Intsv.

Academic Honesty

QUT is committed to maintaining high academic standards to protect the value of its qualifications. To assist you in assuring the academic integrity of your assessment you are encouraged to make use of the support materials and services available to help you consider and check your assessment items. Important information about the university's approach to academic integrity of assessment is on your unit Blackboard site.

A breach of academic integrity is regarded as Student Misconduct and can lead to the imposition of penalties.

Resource materials

Lahore J, Patents Trade Marks and Related Rights (1996)

Lahore J, Copyright and Designs (1996)

Fitzgerald A.M. & B.F., Intellectual Property in Principle (2004)

Fitzgerald A.M. & Eliades D.G., Intellectual Property, Lawbook Nutshell Series (2008)

Ricketson, S, The Law of Intellectual Property (1984)

Risk assessment statement

There are no-out-of-the-ordinary risks associated with this unit.

Disclaimer - Offer of some units is subject to viability, and information in these Unit Outlines is subject to change prior to commencement of semester.

Last modified: 21-May-2012