• INTELLECTUAL PROPERTY RIGHTS

Federal Court of Australia Alcon Inc Vs. Bausch & Lomb (Australia) Pty Ltd.

The present case has been filed by the applicant against the respondent for infringement of their registered trade mark for the word "BSS" in Class 5 for ophthalmic irrigating solution. The sole complaint of the applicant is that, in the period from about June 2006 until late September 2008, the respondent supplied and offered to supply ophthalmic irrigating solution under or by reference to the sign "BSS" by supplying and offering to supply 19 ml plastic bottles of its AQSIA(tm) brand balanced salt solution to ophthalmic surgeons and others. Whether the Respondent's use of the letters "BSS" constitute the use as a trade mark within the meaning of s 120(1) of the Trade Marks Act 1995? Whether the respondent's use of BSS was in good faith to indicate the kind, quality, intended purpose or some other characteristic of its AQSIA(tm) brand balanced salt solution within the meaning of s 122(1)(b)(i) of the Act so as to amount to a complete defence to the allegation of infringement?

As per Section 120 a person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered. In the present case, respondent included the letters "BSS" on the label affixed to its 19 ml bottle of AQSIA(tm) brand balanced salt solution which was substantially identical to the applicant's BSS trade mark. Those letters were used by the respondent with respect to goods in respect of which the trade mark is registered. Respondents also failed to prove that its use of the letters "BSS" was not use of those letters as a trade mark since it was evident that impression created by the positioning of "AQSIA" and "BSS" is that this part of the label is dealing with branding of the product and was intended to use a well known brand in their label. Further, inorder to avail the benefit of defence of good faith under Section 122 (1)(b) (i), the respondent must show that it acted honestly and without any ulterior motive. The respondent did not call any evidence at all as to the circumstances in which the decision to use the letters "BSS" on the infringing label was made. The respondent has failed to establish the pleaded defence which relied upon s 122(1)(b)(i) of the Act. The applicant has succeeded in proving that the respondent infringed its BSS trade mark.

I4I Limited Partnership and Infrastructures for Information Inc. Vs. Microsoft Corporation

The present case is a patent infringement case filed by the owner of the i4i Limited partnership against Microsoft Corporation, alleging that the Custom XML editor in certain versions of Microsoft word alleging that the custom XML editor in certain versions of Microsoft Word ("Word"), Microsoft's word-processing software, infringed i4i's patent. After a seven-day trial, the jury found Microsoft liable for willful infringement. The jury rejected Microsoft's argument that the patent was invalid, and awarded $200 million in damages to i4i. The district Court denied Microsoft's motions for Judgment as a matter of law and motions for a new trial, finding that Microsoft had waived its right to challenge, among other things, the validity of the patent based on all but one piece of prior art and the sufficiency of the evidence supporting the jury's damage award. Although statutorily authorized to triple the jury's damages award because of Microsoft's willful infringement, the district Court awarded only $40 million in additional damages. It also granted i4i's motion for a permanent injunction. Whether the district Court properly construed the claim term "distinct"? Whether "distinct" adds the requirement of storage in separate files?

None of the claims mentioned "independent manipulation" of the mapped content and metacode map, the inventors intended this limitation. Similarly, the specification refers to "separate," rather than "independent," manipulation of the document's architecture and content. The specification goes on to describe the storage of the metacode map and content as "distinct and separate." "Distinct" and "separate" are not the same as "independent." Moreover, the specification teaches that "separate manipulation" describes the user's ability to work on only the metacode map or content. Behind the scenes, the invention keeps the metacode map and content synchronized. For example, Figure 9 teaches that updates to the content may require the invention to make corresponding changes to the metacode map. '449 Patent col. 14 l.49-col.15 l.5. Microsoft Corporation is permanently enjoined from selling Word 2003 & 2007. Injunction to be effective from 11.01.2010.