In Ireland, the law relating to patents is governed by the Patents Act, 1992 (here and here) as amended in 2006 (here and here). According to the Irish Patents Office, a patent

confers upon its holder, for a limited period, the right to exclude others from exploiting (making, using, selling, importing) the patented invention, except with the consent of the owner of the patent. A patent is a form of ‘industrial property’ [IP], which can be assigned, transferred, licensed or used by the owner.

The same site also clarifies that any person

may make an application for a patent; the right to a patent belongs to the inventor or the inventors’ successor in title. However, if an employee makes an invention in the course of his/her employment the right to the patent may belong to the employer.

Unsurprisingly, therefore, my employer (Trinity College Dublin) claims ownership

… of all IP created by College Staff in the course of their employment and/or in the fields of expertise in which they choose to work, and thus inventors are required to assign their rights to the College through Innovation Services. In return for this assignment, College contracts with the creators of the IP to share with them any financial benefits received, in accordance with College Regulations.

However, the cat [not this one] has been well and truly thrown among the pigeons by an Australian decision, on similar legislation, by French J in Federal Court of Australia in University of Western Australia v Gray (No 20) [2008] FCA 498 (17 April 2008), a case greeted thus by today’s Sydney Morning Herald:

Universities shudder over patent ruling

EMPLOYERS’ claims on patents for inventions made by their staff may be under threat after a landmark Federal Court ruling in a case pitting the University of Western Australia against one of its former academics, Sirtex founder Bruce Gray. … The case arose after Dr Gray, a professor of surgery, developed a promising new liver cancer treatment while working as an academic at the university. Dr Gray then left to form a biotechnology company, Sirtex, which included some of his intellectual property among its assets when it floated in 2000.

Four years later UWA started legal proceedings against Dr Gray for wrongly appropriating the intellectual property, but this month the judge found in his favour in a decision that pivoted on the professor’s obligations as a university employee.

“Absent express agreement to the contrary, rights in relation to inventions made by academic staff in the course of research and whether or not they are using university resources, will ordinarily belong to the academic staff,” Justice French said.

“The position is different if staff have a contractual duty to try to produce inventions. But a duty to research does not carry with it a duty to invent.” …

Unsurprisingly, the University has said that it is considering an appeal.

Now, if only I had a patentable invention, I could see just how robust the TCD policy is …

On front page of this morning’s Irish Times, Karlin Lillington writes

Garda powers of request for internet data to be widened

THE RANGE of criminal investigations for which the Garda will be able to request e-mail and internet data retained by internet service providers has been broadened by the Government. … Under the draft statutory instrument, retained data would include names of those who sent and received e-mails, computer addresses, the location of computer users, the times a user logged on and off a computer, and the size of files and e-mails sent and received, but not the content of e-mails.

Read the rest of this entry »

Look up, it’s Aer Lingus
Aer Lingus used to know how to do public relations – in my youth a long time ago in a galaxy far far away, it had three very powerful advertising campaigns which had a profound effect on me. One used the Gallagher & Lyle song “Breakaway” (YouTube) featuring the lyric “breakaway, fly across your ocean / breakaway, time has come for you”. The second featured the musical tag line “Look up, it’s Aer Lingus, there’s a little piece of Ireland flyin’ by”, with a little girl playing in a field looking up at an Aer Lingus Boeing flying overhead – it gave rise to Aer Lingus’s most enduring slogan, which I have used at the head of this paragraph. And the third was called “You’re Home” (YouTube) and featured Gabriel’s Oboe; it never failed to induce a catch in the voice, a lump in the throat, and a tear in the eye. Judging by a controversy that has flared over the last day or two, however, they seem long since to have lost this knack for connecting with the Irish zeitgeist. Instead, they have flown into a tempest of controversy which they moved to abate only after two days of pressure amounting to a public relations debacle for the airline.

The controversy began when the Aer Lingus website offered transatlantic business-class flights for e5 plus taxes. This was a mistake, and when the airline discovered it, not only did they change the website so that no further customers would be able to take advantage of the offer, but they also sought to cancel the flights already booked (AFP | BBC | Belfast Telegraph here and here | BreakingNews.ie | Forbes | Ireland.com Breaking news | Irish Independent here and here | Irish Times | RTE here and here | Limerick Leader | The Guardian | PA | The Sydney Morning Herald here and here). This caused a national outcry ( Argus Car Hire | Jazz Biscuit | Jet vine | Lost Weekend | Paddy Anglican | Portfolio.com |The Irish World | Temple Bar | Value in Ireland | View from the Wing ) on a par with the drumbeats that go up calling for the head of the manager of a national sporting team at the end of another unsuccessful tournament. There has been much misleading pontification about the legal rights and wrongs of the issue, on the part both of the customers and of Aer Lingus, and I propose to add to that din by looking at the Contract Law issues that arise on these facts.

There are, in fact, at least four sets of legal questions here: (i) is there a contract between each of the customers and Aer Lingus; (ii) if so, is it affected by the mistake; (iii) if not, is there a provision in the terms and conditions on which Aer Lingus can rely; and (iv) if not, what remedies are likely to be available to the customers against Aer Lingus? Read the rest of this entry »

As Bridget said in the comments to yesterday’s post about the US Supreme Court’s decision in the death penalty case, Baze v Rees:

Intellectual commentary might come later.

Here’s my first try. Read the rest of this entry »

On the day when the President of the United States welcomes the Pope to the White House, the long-awaited decision of the US Supreme Court on the compatibility of the lethal injection with the Eighth Amendment to the US Constitution has been handed down. In Baze v Rees, the challenge failed by a vote of 7 to 2 and the decision below (217 S. W. 3d 207 (2007)) was upheld; but the 7 is a fractured majority (I have previewed this case here and here; for full analysis, see the ScotusWiki page on the case; for initial news reaction, see NPR).

Roberts CJ, joined by Kennedy and Alito JJ, concluded that Kentucky’s lethal injection protocol satisfies the Eighth Amendment. In their view, allowing a condemned prisoner to challenge a State’s execution method merely by showing a slightly or marginally safer alternative found no support in the Court’s cases, that it would embroil the courts in ongoing scientific controversies beyond their expertise, and that it would substantially intrude on the role of state legislatures in implementing execution procedures. As a consequence, they held that the petitioners had failed to demonstrate the necessary substantial risk of serious harm, and that Kentucky’s protocol did not constitute an unconstitutional “cruel and unusual” punishment. Read the rest of this entry »

L’Assemblée nationale francaise (the lower house of the French parliament) yesterday passed a “Draft law aimed at fighting incitement to seek extreme thinness or anorexia” providing for fines of to €30,000 and terms of imprisonment of up to two years for inciting to “excessive thinness” and more if the incitement results in death (see Associated Press | Daily Telegraph | Guardian | International Herald Tribune here and here | Irish Independent | Irish Times | Media Law Prof Blog here and here | New York Times; update Volokh, including the French text of the Bill). The Bill will go before le Sénat (the upper house) next month. According to the Guardian, the Bill:

would bar any form of media, including websites, magazines and advertisers, from promoting extreme thinness, encouraging severe weight-loss or methods for self-starvation … [and] is specifically aimed at what French MPs called pro-anorexia “propaganda” websites … [which] support anorexia as a lifestyle choice rather than a medical disorder … The blogs and forums, which have developed in the US since 2000 and grown in France over the past two years, often include talk-boards frequented mainly by teenage girls and young women with advice on how to get through the pain of extreme hunger after eating a yoghurt a day, or how to hide extreme weight-loss from parents or doctors. Some use pictures of excessively thin models as “thinspiration” for self-starvation.

There is plainly an important social issue here, and much good work is done in Ireland by groups such as Bodywhys (especially their online support group). Indeed, more can be done to combat this problem without recourse to censorship. Read the rest of this entry »

The First Amendment is dead, according to Judge Alex Kozinski (right) (official bio | articles | magazine profile | unofficial site | UTR BSG | wikpedia).

When AK shoots from the lip, life is never boring. One friend likes his fiercely libertarian instincts, another his mercurial contrarian attitudes – I have always been a fan of his provocative First Amendment scholarship and decisions (one of the classic articles on the doctrine of commercial speech is Kozinski and Stuart Banner “Who’s Afraid of Commercial Speech?” 76 Virginia Law Review 627 (1990) (pdf); see also their sequel “The Anti-History and Pre-History of Commercial Speech” 71 Texas Law Review 747 (1993) (pdf); summary here).

Last week, he made speech theory life very interesting indeed. Delivering an address at a Pepperdine University School of Law Sympoisum on Free Speech & Press in the Modern Age – Can 20th Century Theory Bear the Weight of 21st Century Demands?, AK argued that the First Amendment is dead! In a summary provided by Roger Alford on Opinio Juris (also Legal Blog Watch | First Amendment Law Prof Blog), in a speech entitled “The Late, Great First Amendment”, the essence of what AK had to say was that

in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech? Read the rest of this entry »

From today’s Bits Blog on the New York Times site:

Newspapers Argue for First Amendment Right to Snoop on Readers

Usually, when people talk about the trade offs between privacy and freedom of the press, the argument is about whether the public has the right to know some fact about an individual’s personal life.

The newspaper industry is now arguing that the First Amendment protects its right to follow users around the Internet so it can charge higher prices on advertising.

This argument was made in a filing by Newspaper Association of America commenting on the Federal Trade Commission’s proposal that the companies involved in advertising that uses what is called behavioral targeting create a self-regulatory code that limits their use of sensitive information. Read the rest of this entry »