Welcome to the ideas boom

Top 10 initiatives from the Turnbull government’s $1b Innovation Statement

Alex Hutchens, Reece Walker

Prime Minister Malcolm Turnbull and Minister for Industry, Innovation and Science Christopher Pyne yesterday unveiled the Federal Government’s highly-anticipated Innovation Statement with the comment, “welcome to the ideas boom”.  

As the Turnbull government's first major policy document, it is expected to involve the investment of $1.1b over four years across a range of industries.  Mr Turnbull believes the plan will drive innovation in government, promote a culture of entrepreneurship and place innovation at the heart of everything we do in Australia.

Australian businesses, particularly start-up companies and those in the technology sector are set to benefit from the initiatives.  We have highlighted our top 10 opportunities below.

A not-so-safe harbour

Alex Hutchens, John Kettle, Paul McLachlan, William McCullough

It is impossible to avoid the frenzy that has been kicked up by the European Court of Justice’s (ECJ) decision of 6 October 2015 in Case C-362/14 Maximillian Schrems v Data Protection Commissioner.

What is/was the Safe Harbour?

Like Australia, the Member States of European Union (EU) are subject to strict data protection regulations. Generally speaking, personal data cannot be transferred out of a Member State unless the destination country has adequate protection for the data in question. Over a decade ago, the United States of America (US) and European Commission entered into the ‘Safe Harbour Agreement’ which meant that data could be shared where both companies comply with the Safe Habour Agreement.

All was well and good and many big businesses (including Amazon and Google) relied on the enforceability and protection of the Safe Harbour Agreement.

Apple facing damages bill for patent infringement

Alex Hutchens, John Kettle, Paul McLachlan, Eliza Humble

Apple Inc could be facing up to $US862 million in damages after a US Federal jury ruled on 13 October 2015 that it infringed a patent owned by the licensing arm of the University of Wisconsin.

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