Intellectual Property & Technology: 2022 Year in Review
Our Intellectual Property & Technology Team reflects on the year and the industry trends in 2022. The Team also looks forward as to what the next 12 months may have in store.
“This year has featured increasing digitisation of commerce and government, partly driven by increased remote working arrangements arising from the Covid-19 pandemic but also by information technology trends generally. Whilst there are many positives for organisations, this increase in digitisation has also seen a concomitant increase in high profile data breaches. In 2023, I expect that the focus on data security will continue to be a high priority, as more organisations utilise information technology in their operations and business models.”
Tim Clark – Partner
The Full Federal Court of Australia handed down its decision in the latest chapter of cases internationally where Dr Stephen Thaler sought to have his AI system named “DABUS” recognised as an inventor of various patentable inventions. While Dr Thaler was successful at first instance, the Full Court determined that an “inventor” must be a natural person and has shut down (for now) the concept of AI derived patentable inventions in Australia (read the insight here).
We currently await a decision from the High Court of Australia on whether the use of a competitor’s registered trade mark, to promote the competitor’s product as an alternative, infringes the registered trade mark. In October 2022, the High Court heard the appeal in Self Care v Allergan Australia, with one of the key issues to be determined by the Court being whether the phrase “instant Botox® alternative” is use as a trade mark and whether that phrase is deceptively similar to the registered trade mark, “BOTOX”.
The full court of the Federal Court of Australia has handed down a number of important decisions, including Swancom v The Jazz Corner Hotel  FCAFC 157 and State Street v Maurice Blackburn (2022) 166 IPR 29, with respect to trade mark use and infringement that may influence how IP Australia (which manages Australia’s trade marks applications) assesses trade mark applications and how the courts assess whether there has been trade mark use of word marks and logos.
On 25 January 2022, the Commonwealth Government announced that it had acquired the copyright in the Aboriginal Flag from Harold Thomas and thereby allowing use of the Aboriginal Flag for both commercial and non-commercial purposes, without needing to obtain a licence from a commercial entity or pay fees or royalties. However, the previous licensee, Carroll & Richardson-Flagworld Pty Ltd retains the exclusive licence to manufacture and provide the Aboriginal Flag on flags and pennants, banners and buntings.
In relation to domain names, the .au Domain Administration (auDA), the authority for the .au domain, launched new “.au direct” domain names on 24 March 2022, being domain names directly before “.au” such as pavlova.au. Registrants of existing .au domain names prior to 24 March 2022 (ending in .com.au, .net.au and .org.au) had a six-month priority access to the direct .au domain name (read the insight here). From 20 September 2022, all .au direct names were released from priority hold and made available for registration by the public.
Information technology and e-commerce
The IT transformation of business continues to rise despite some setbacks to IT projects due to the global pandemic and related global supply chain issues. The increasing use of cloud computing in Australia continues in both private and government sectors, with new “vertical cloud” offerings being tailored to the needs of specific industries. Some emerging trends include the increasing use of AI and machine learning in optimising business operations as well as in maintaining resilience against both IT failures and cyber attacks, a focus on enterprise content management particularly to assist access to business information by increasing numbers of employees working remotely and a new focus on environment sustainability
Governments throughout Australia have committed to policy frameworks that provide for greater leverage of information technology to better deliver government services. The NSW Government’s “Beyond Digital” continues to gather pace with moving digital government services from the periphery to the forefront of service delivery. Examples include a range of digital government licences including driver licences, seniors’ cards and working with children check clearances. In December 2022, the Victorian Government announced a new Department of Government Services to bring together digital delivery and centralising backend functions for government services across the board.
The high-profile spate of data breaches during 2022 affecting Medibank Private, Optus and other well-known Australian brands has sharpened the public and regulatory focus on information privacy and data security. We await the results from the Office of the Australian Information Commissioner of investigations conducted under the Privacy Act into the data breaches affecting Optus and Medibank Private.
In response to the data breaches, the Commonwealth Government passed legislation in December 2022 to increase the maximum fines under the Privacy Act for serious and repeated breaches of privacy, while also granting the Information Commissioner broader information-gathering and information sharing powers.
For some time, Australia’s corporate regulator, the Australian Securities and Investments Commission (ASIC). has stressed the need for directors and senior management of companies to develop, and to oversee the implementation of, strategies to build cyber resilience to minimise the adverse effects of a cyber incident on companies. In April, the Federal Court of Australia gave judgement in favour of ASIC in ASIC v RI Advice Group Pty Ltd  FCA 496, declaring that RI Advice had breached its obligations as an Australian Financial Service licensee under the Corporations Act by failing to ensure adequate cybersecurity measures were implemented across its network of authorised representatives and by exposing its representatives’ clients to an unacceptable level of risk (read the insight here). In the decision, the Court specifically recognised that, for many businesses, “cybersecurity risk forms a significant risk connected with the conduct of the business”.
During 2022, many industries faced increasing need to consider privacy and data protection compliance issues (for many businesses also involving cross-border transfer issues) arising from the increasing complexity of digitisation of internal and external business operations. We continue to advise in relation to cyber incidents, particularly focusing on, what are now commonly relevant, the contractual implications of the relevant incident.
The Adelaide team welcomed Trade Marks Attorney, Lorraine Miller, and law graduate, Laura Coppola and celebrated the promotion of Travis Shueard to Senior Associate this year.
The Melbourne team welcomed back experienced intellectual property legal administrative assistant, Jacqui Marriott.
We are grateful for the recognition we received from our clients and peers:
The Legal 500 Asia Pacific
In the 2022 edition of The Legal 500 Asia Pacific, Piper Alderman was recognised across 12 areas of law including Data Protection and Intellectual Property, with the following individuals recommended:
- Tim Clark – Recommended for Data Protection and Intellectual Property
- Tim O’Callaghan – Recommended for Intellectual Property
- Eilish Gigney – Recommended for Intellectual Property
The Best Lawyers in Australia
In the 2023 edition of The Best Lawyers in Australia, 52 of Piper Alderman’s lawyers are recognised across 42 legal areas including the following from our Intellectual Property & Technology team:
- Tim Clark – Privacy and Data Security Law
- Tim O’Callaghan – Intellectual Property Law
- Craig Subocz – One to Watch: Information Technology Law & Intellectual Property Law
Tim O’Callaghan is recognised in the area of Intellectual Property / Technology, Media & Telecommunications, Adelaide
The Intellectual Property & Technology team produced and published a number of timely insights during the year and was pleased to participate in client and industry-facing webinars, seminars, events, sponsorships, and partnerships through 2022.