LAWS12068 Innovation & IP Law, T1/2024
LAWS12068 Innovation & IP Law, T1/2024
Written Assessment (Problem Question) (30%)
Word limit: 1750 wds (excluding footnotes). 10% +/- leeway (MAX. 1925 wds, after which text will not be read).
INSTRUCTIONS:
Answer ALL questions.
Be sure to read the PREPARATION section below and RUBRIC before you start your research.
Reference your answers with relevant cases and/or statutory provisions, according to the AGLC.
Go through the university policy on academic integrity and be sure to avoid plagiarism.
FACTS:
Bill and Bob are artificial intelligence (AI) engineers and associate professors at Noclue University in Australia. They research in the area of AI products in the healthcare industry. They have incorporated a company, STYWWAY Pty Ltd, to commercialise their exciting new machine learning models that automate the process of selecting the optimal testing regime for assessing the proper functioning of diagnostic devices, such as those used for testing the concentration of particular substances in blood and urine samples.
The quality control tests for these diagnostic devices require using reference samples for which the correct result is known; test results are verified against predetermined criteria. Where a device passes a quality control check, it is working properly and patient test results can be released. If not, the device is not working properly and, depending on when the device malfunctioned, the patients sample will need to be retested or will be notified to the patient as a final error. It is preferable to find the optimal quality control regime, to reduce the number and frequency of quality control tests while maintaining performance targets for these diagnostic devices, thus reducing costs for the businesses conducting the testing services.
In Bill and Bobs research, they had studied an earlier (patented) iteration of the process developed by Bio-Rad. That involved some time-consuming steps using a computer processor to generate quality control rules for a particular type of diagnostic device; calculating the quality control utilization rate for each rule (ie. the average number of reference samples tested for each quality control check divided by the average number of patient samples tested between checks); determining the rule with the lowest utilization rate; and finally selecting it as the optimal quality control strategy and implementing it manually. -685795081Source: Nightcafe Creator, Evil AI Machine Controlling Other Computers (Art created by AI via AJ using the title prompt!).
-685795081
STYWWAYs machines can fully automate this process, by training online AI models using massive amounts of quality control data scraped from online scientific publications in many different commercial publishers databases. An optimised quality control testing regime, specifically tailored for any diagnostic device, and calibrated for any particular substance of interest, can quickly and effortlessly be produced by the STYWWAY machines. They are also designed to be connected via Bluetooth to the diagnostic devices, so they can control and implement the testing regime in each device automatically at the predetermined rates. Where new online scientific publications indicate an adjustment is required to achieve an improvement in the testing regime, the adjustment will automatically be made, as STYWWAY implements continuous online machine learning.
Bill and Bob are extremely enthusiastic about their invention and attend an international conference for the Learned Society of AI Engineers in Geneva (LSAIE) to present a paper outlining all the salient features of the invention. They are quickly promoted to professorship at Noclue University.
However, there were many representatives from scientific publishers at the conference. They were very upset to hear about Bill and Bobs activities in scraping their online publications to train the AI model, and even more upset to hear of Bill and Bobs plans to commercialise their invention on a global scale. Given that the medical devices industry makes $600 billion annually, Bill and Bob had projected modest profits in the first year of at least US$10 million, with growth to US$100 million within 5 years. The angry publishers arranged to meet with each other to discuss their response. (Note that the publishers contracts with authors required assignment of all copyright to the publishers).-950024372Source: Nightcafe Creator, Two happy geeky science professors in front of banner saying NOCLUE UNIVERSITY presenting at a conference in front of angry business people (Art created by AI via AJ using the title prompt! I like the troll business people!).
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Meanwhile, Bill and Bob decided to push ahead with commericialisation plans. They decided they would need funding to commercialise their product, but after receiving an email from the technology transfer office at Noclue University, they realised that their company, STYWWAY Pty Ltd, should obtain patent protection for it. Investors liked that kind of thing.
Further, their artistically-minded friend, Jan, suggested STYWWAY market the AI machines using a trade mark with a logo she created: DEVICE-TEST. Jan also suggested a jingle to be used with all advertisements, with the lyrics: Dont just test your device DEVICE-TEST it!!
Bill and Bob then receive a copyright infringement notice from ScaryLaw, a Sydney law firm acting for 322 different commercial scientific publishers (from Berne Convention countries). They allege STYWWAY Pty Ltds data mining and training activities for the AI product infringe copyright in their clients online works, and demand that all such activities must either be licensed or cease or the publishers will sue for an injunction to force cessation and damages for infringement. This got Bill and Bob very worried about the whole intellectual property rights issue. They didnt quite know what to do.
You work as a lawyer in a small practice, LotsaClueLaw, near Noclue university. Bill and Bob now come to you for advice, showing you the letter from ScaryLaw, and explaining they should probably have come to you earlier to ask about intellectual property issues.
QUESTIONS:
Copyright: do STYWWAY Pty Ltds data mining and training activities for the DEVICE-TEST product infringe the publishers copyright in their online scientific publications (you can assume copyright subsists in the works)?10 MARKS
Patents: can STYWWAY Pty Ltd patent the AI DEVICE-TEST machine? Restrict your analysis to:
Is the machine a manner of manufacture?6 MARKS
Is the machine novel?2 MARKS
If the patent were granted, is there any other obstacle to commercialisation?2 MARKS
Trade marks:
Would the DEVICE-TEST mark be registrable as a trade mark?5 MARKS
Assume the mark could be registered. Comment on any issues associated with the advertising jingle.5 MARKS
Please turn over the page/
PREPARATION:
Watch the videos, read your study guides and the linked materials there, for weeks 1-4.
Read Graw, Parker and Whitford, Understanding Business Law (LexisNexis Butterworths, 9th ed, 2019), Chapter 21: Intellectual Property as required.
Where necessary, you should consult the Patents, Trade Marks and Related Rights (Lahore) commentary in Lexis Advance (youll need your CQU login for this), Halsburys Laws of Australia, and/or other more detailed recommended texts (see the week 1 study guide).
You should also consider the literature surrounding the following interesting debates that frame this scenario. In relation to copyright and patents, start with the following:
Rita Matulionyte, Copyright in AI in Australia: 2023 in review, Kluwer Copyright blog (Blog post, 15 January 2024);
Rita Matulionyte, Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options? (2021) 52 IIC 417, 419;
DLA Piper, Training AI models: content, copyright and the EU and UK TDM exceptions, MSE Today (Blog post, 21 December 2023);
Lewis Silkin, NYT v OpenAI: The Publishing Sectors AI Content-Scraping Conundrum (Blog post, 19 January 2024);
IP Australia, Manual of Practice and Procedure, [5.6.8.6] (and the cases cited there);
Bio-Rad Laboratories, Inc. [2018] APO 24 (re Patent Application: 2012272906).
You will all have heard of ChatGPT, the natural language processing algorithm that has brought with it much discussion and concern around plagiarism and academic integrity in the higher education community. We have been chatting about ChatGPT (no pun intended) on Teams in fact! In order to counter any difficulties associated with the inappropriate use of ChatGPT or other AI assistive tools, this term I will require evidence of the research process you undertook for this assignment.
Please copy and paste in to the back of your assignment, in the one document, your individual research memo, for verification by myself. Please set out a table including:
The resources you consulted;
Dates that you considered the resource(s);
Notes on your thoughts about the resource(s), and how it contributed to the development of your thinking and argument(s). This is designed to show me the level of your critical reflection on what youve read and learned. It can be very informal, like a diary note to yourself.
A simple list of resources, like a bibliography, will not suffice for your research memo. I need to see how the resources youve read impacted the final work you submit for the assessment;
***The research memo will NOT count in your word count.
***Please note: I will not mark any assignment that does not have evidence of your research process attached to your work.
***Please also note: I am not averse to you sharing your research results with colleagues on Teams and discussing your views (in the Assignment channel). Please feel free to include screen shots of your contributions on Teams in your research memo. I encourage collaborative work, because in the real world of a law firm, you dont operate in a silo. Where you are involved in providing a big advice, often you will bounce ideas off of your colleagues. However, the work that you ultimately submit for marking must be all your own. Similarities in written expression will be a red flag for plagiarism.
I hope you enjoy researching, sharing, discussing, debating and writing up this assignment! Of course, any queries please do not hesitate to post to Teams (Assignment channel) or email me.Kind regards, AJ.
HD High Distinction D Distinction C Credit P Pass N Fail
Identification of legal issues All legal issues are identified in a logical manner with alternative issues addressed where relevant. Most legal issues are identified in a logical manner. Most legal issues are identified, but some are not addressed in a logical manner. Identifies some of the core legal issues. Some issues are missed or confused. Understanding of the task not apparent. Limited or no attempt to identify legal issues.
Identification and analysis of relevant law Identifies the relevant case(s) and/or legislation and shows a masterful understanding of their facts, legal reasoning and/or relevance. Identifies any alternative arguments with reference to legal reasoning in the provided case law. Authority is used consistently to support discussions. Identifies most of the relevant case(s) and/or legislation. Shows a high level of understanding of their facts and/or relevance. Authority is mainly used to support discussions. Identifies some of the relevant case(s) and/or legislation with occasional reference to the legal reasoning in the provided case law. Reasonable use of legal authority to support discussions. Evidence of limited ability to identify relevant case(s) and/or legislation and shows limited understanding of their facts, legal reasoning and/or relevance. Some use of legal authority to support discussions. Lacks evidence of ability to identify the relevant cases(s) and/or legislation and little understanding of their facts, legal reasoning and/or relevance. Little or no use of legal authority to support discussions.
Ability to apply the law to a factual scenario
Clear and consistent application of the law to the facts, adhering to the doctrine of precedent and relevant legal reasoning in the provided case law to identify the most logical outcome. Clear and mostly consistent application of the law to the facts, adhering to the doctrine of precedent and relevant legal reasoning in the provided case law to identify potential outcomes. Application of the law to the facts, with refence to the legal reasoning in the cases provided. Attempts to apply the law to the facts, some aspects of the legal reasoning in the provided case law to the facts. Little or no attempt to apply the law to the facts, or adhere to the the doctrine of precedent or the legal reasoning in the provided case law to the facts.
Ability to provide clear, supportable conclusions Conclusion is well-reasoned, logical and is consistent with the discussions throughout the document. Conclusion is consistent with the discussions throughout the document. Conclusion is grounded in the discussions throughout the document. Conclusion is too brief and may be inconsistent with, or does not refer to, the discussions in the document. Unsubstantiated conclusions based on generalisation only or no conclusions at all.
Effective communication and referencing Fluent writing style and terminology appropriate to the document with a suitable and clear structure. Grammar, spelling and referencing are consistently accurate. Language mainly fluent with a suitable and clear structure. Grammar, spelling and referencing are mainly accurate. Language reasonably fluent. Structure apparent. Grammar, spelling and referencing are reasonably accurate.
Meaning apparent but language not always fluent. Some structure. Grammar and/or spelling contain errors. Referencing contains numerous errors. Meaning unclear. Grammar and/or spelling contain frequent errors. Lack of structure. Almost all referencing is incorrect or no attempt at referencing at all.
Research memo Comprehensive memo with dates, resources, critically reflecting on students analytical journey in completing the task. Comprehensive memo with dates, resources, discussing the students analytical journey. Some elements of good critical reflection. Research memo with dates, resources, and notation of some aspects of the students analytical journey. Limited critical reflection. Research memo with dates, resources, and merely descriptive reporting of steps undertaken. No research memo.
RUBRIC
