High Court ruling on the patentability of human genes

Malcolm McBratney

Today’s landmark decision by the High Court in D'Arcy v Myriad Genetics Inc & Anor [2015] HCA 35 (7 October 2015) essentially prohibits patent protection for human genetic material and genetic sequences.  The decision reverses the 15 February 2013 Full Federal Court ruling, which found that United States company Myriad Genetics Inc’s (Myriad) patent on the isolated BRCA1 gene, associated mutations and utilisation of the sequence for diagnostic purposes was valid.

Protections for small businesses against unfair contract terms

Alex Hutchens, John Kettle, Malcolm McBratney, Paul McLachlan

Under the Australian Consumer Law, unfair terms in standard form contracts with consumers can be declared void, but small businesses (who are often subject to the same power imbalance when negotiating agreements with large suppliers) have to date had no protection under that regime.

On 18 August 2015, a Bill to extend protections against unfair contract terms to small businesses passed the House of Representatives. The Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 (Cth) has already been referred to the Senate Economics Legislation Committee which is due to report on the legislation on 14 September 2015.

The globalisation of Australian brands and why you need to register your Chinese trade mark application now

Malcolm McBratney, Alex Hutchens, Kellie Jukkola, Alexia Marinos

With more and more Australian companies entering the lucrative Chinese marketplace, it’s important to register your trade mark in this jurisdiction as soon as possible or you may miss out and in the process dilute your future ability to promote your brand globally.

Unlike Australia, China has a ‘first-to-file’ approach to trade mark registration.  This means the first applicant for a trade mark will generally acquire rights in the mark, even though they may not be the first user of the brand in that country. 

Has the PPSA undone your asset protection strategies?

Kristen Podagiel, Kirby Jukes, Michael Carroll

The Personal Property Securities Act 2009 (Cth) (PPSA) is widely regarded as the most significant change to the law in Australia since the introduction of the GST and has the potential to materially reduce the effectiveness of existing asset protection structures.  Corporate groups, advisers and accountants should consider the impact of the PPSA, particularly in a tough economic market and where clients seek to separate asset ownership from business risks.

What’s the big deal with the PPSA?

The intent behind the PPSA is to create a single register known as the Personal Property Securities Register (PPSR) where all forms of ‘security interests’ in respect of ‘personal property’ must be registered.  Failure to register a security interest on the PPSR may mean that the interest is lost through a subsequent transaction involving the ‘personal property’.

Under the PPSA there are two key concepts:

• ‘personal property’ which is defined as all property (including a licence) but excluding land, interests in land and certain other excluded assets, and
• ‘security interests’ which is broadly defined as an interest in personal property arising from a transaction that, in substance, secures payment of money or the performance of an obligation.

Critically, transactions that have not typically given rise to security interests such as rental, leasing and hire arrangements may constitute security interests that require registration on the PPSR to be enforceable against third parties (including receivers or other creditors).

Please refer to our recent alert for further details about the impact of the PPSA on asset protection structures, your obligations and the consequences of not registering a security interest.

 

Kristen Podagiel

 

Kirby Jukes

 

Michael Carroll

 

Australian ISPs beware

Tim Case, Malcolm McBratney, Andrew Poulton

Australia’s piracy laws could be anchoring some big ships with a new Copyright Bill introduced into the Australian Parliament.  The Bill gives power to the Federal Court to grant injunctions requiring internet service providers (ISPs) to take ‘reasonable steps’ to disable access to sites that infringe or facilitate the infringement of copyright. 

Treasurer proposes 'Netflix tax' on supply of intangible services into Australia

Alex Hutchens, Malcolm McBratney, Mark West, Amanda Kidd

Non-resident suppliers to prepare for Australian GST to apply at source of payment

A planned change to apply Australian GST to the source of payment for intangible services, regardless of the location of the source of the service, would require non-resident suppliers to pay GST on supplies of digital content (e.g. music, films, games), licensed rights (e.g. software), services provided and other intangible rights sourced from outside Australia.

A change to the current $1,000 low value threshold before GST applies to imported goods is also planned in association with these changes for intangible services.

Accordingly non-resident suppliers of services or goods should commence preparation for Australian GST to apply to their supplies at source of payment in Australia - including reviewing their pricing and contracts to ensure they are able to recover the additional GST cost from their business and retail customers.

Competitive Tension - Harper Review Final Report recommends some real change

Paul McLachlan, John Kettle, Brett Heading

The Commonwealth Government has been conducting a review of Australia’s competition laws to see if they are fit for purpose.  (Click here to see what we had to say about the draft recommendations last October).  The Minister for Small Business released the Final Report of the Competition Policy Review Panel on Tuesday (31 March 2015).  While a number of the draft recommendations have made it into the Final Report, there are also some significant new changes.  Some will fundamentally change the competition law landscape in Australia…if they eventually get into the legislation.