Law Articles April-June 2011 - Commercial Law, Trademark and Intellectual Property 2011
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Law Articles - April-June 2011

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The following articles were gratefully supplied by Dilanchian Lawyers and Consultants - Intellectual Property and Innovation Professionals.


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IP Law

Is more law a good thing?

Wednesday, 29 June 2011
I believe the common opinion is: "Yes". That opinion was accepted as a given in this week's Q&A program. Federal Infrastructure Minister, Anthony Albanese, in defending the Gillard Government said:

"And in spite of some of the criticism and people saying things aren't working, it's 153 pieces of legislation we've carried in the new parliament. No legislation defeated, not a single amendment carried without government support. John Howard only carried 114 pieces of legislation in his first year. So the parliament is functioning. The government is functioning."

So Minister Albanese wants us to accept that 153 pieces of legislation is better than 114.

Patent law works for inventions and investment

Monday, 27 June 2011
A compelling argument for the existence of intellectual property laws can be found in the example of the discovery and commercialisation of the steam engine in Great Britain during the Industrial Revolution.

In his 2010 book The Most Powerful Idea in the World: A Story of Steam, Industry and Invention*, U.S. author William Rosen illustrates how economic imperative in the age of steam drove the rise in patents issued in Britain.

The approach in Britain of using patents to encourage invention is in contrast to the contemporaneous approach in France, where inventors were awarded cash for their inventions: "Between 1740 and 1780, the French inclination to reward inventors not by enforcing a natural right but by the grant of pensions and prizes resulted in the award of nearly 7 million livres - approximately $US600 million today - to inventors of largely forgotten devices…". (p. 268)

8 errors with NDA templates

Friday, 24 June 2011
Do you ask your lawyer to check over template agreements that you have prepared yourself or obtained online for free or a fee? Unless you're experienced, you should. They may not provide the legal protection you think they do.

Such agreements are often riddled with errors or require customisation, even though you were not told upfront. The gaps and holes leave room for others to enter and take the treasures in your intellectual property castle. A non-disclosure agreement ("NDA") is often the culprit in these do-it-yourself contract cases.

Lightbulb Moment - music IP & innovation

Friday, 24 June 2011
What can innovators learn from Time Out? This jazz album was recorded in 1959. It's the first instrumental jazz album to sell over a million copies. For decades it has been in the list of the top 10 biggest selling jazz albums of all time. Here's the short version of the story.

When the band leader, David Brubeck, decided to record this album his record label people at Columbia Records said no. The music as composed by Brubeck was very unusual for the time in its time signatures and style.

Contract law on consideration

Wednesday, 22 June 2011
Some years ago I had a case in which the parties each acted without legal representation and never agreed on a specific fee for services provided. The services changed day by day. The hourly rates for fees payable varied.

After disagreement arose between the parties, the service provider became my client. My client had performed the services and its first series of invoices had been paid.

Subsequently the services required of my client had varied greatly. Documentation in the form of a contract with a price schedule had been prepared and discussed but the document remained unsettled, unsigned and under negotiation. The parties fell into dispute.

My client's predicament was that services had been performed, but its second series of invoices were unpaid.

Professional practice valuation & checklist

Wednesday, 22 June 2011
Valuation of businesses is an art, not a science. This belief is contrary to the trust held by many in numbers alone, eg a valuation multiple or an EBIT figure.

It is commonplace for people to believe things are worth a specific sum, call it $X. One number. $X is what is charged for each grocery item, new car and even residential premises.

Internet lawyer success story

Friday, 10 June 2011
Recently Dilanchian assisted a booming online software company in a potential sale of business for an eight figure sum. The project confirmed why we are lawyers and consultants; and underlined the wisdom of calling at your project's concept stage.

Letter of demand professionalism

Wednesday, 01 June 2011
Writing a good letter of demand involves professionalism in dealing with people and information. There's a method that can be illustrated with a fee for service contract that has gone wrong.

Assume things have not gone to plan under that contract. The service was delivered but the fee was not paid. The unpaid service provider has made repeated requests. Harsh words have been spoken and tension has arisen.

The two parties should avoid the slippery slope. They should try to work together to overcome issues. They've tried negotiation with no resolution. There's been haggling and even verbal abuse. A lawyer might have been called in earlier, but as usually, hasn't been.

The unpaid party now meets with a lawyer.

Having gone to a lawyer, the unpaid party must communicate a story, collect and supply the evidence, and then help the lawyer examine the facts and evidence. If all this is not done the lawyer should not be forming an opinion and giving advice on what to do next.

IP lawyer puts business process before legal process

Friday, 01 April 2011
To their detriment, too often clients as well as lawyers skim or skip the first and second stage of proposed transactions. When they do this they enter a forest with no clear path to follow.

When they follow the three stage transaction or contracting process they move from casual dating, to going steady, to getting married. It's that simple.

There are three stages for most intellectual property and business law transactions. The first stage is needs assessment. The second, deal points definition. Only after the first and second stage are at least properly considered should anyone go to the third stage - formal contract drafting.

Copyright duration - life + 70 years

Friday, 01 April 2011
The losing side in yesterday's Men at Work music copyright court case, was found to have copied Kookaburra. This is a song the sheet music of which was published in 1934, that's 77 years ago.

Under section 34 of the Copyright Act 1968 the duration of copyright in literary, dramatic, musical or artistic work lasts for the life of the author and for 70 years after the author's death.

How did Australian copyright law reach this outcome, ie this long duration for copyright works?

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