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ISSUE 144 – JUNE 2026

EDITORIAL – BY FIONA PHILLIPS

It is a pleasure to be able to bring you issue 144 of Intellectual Property Forum. In this issue, our main focus is on patent law as well as current developments in Australia, New Zealand and other jurisdictions.

We begin with a profile of Greg Arthur KC, a longtime member of IPSANZ and one of New Zealand’s leading intellectual property (“IP”) counsel. While Greg says that choosing a favourite area of IP is a bit like being asked to choose a favourite child, when pushed, he confesses a fondness for patents. Like many patent afficionados, one of the things Greg enjoys about patents is the opportunity to get to grips with the “prior art”. As we see in this issue, this can require practitioners to learn about diverse and emerging technologies.

The authors of our lead article, Cyntia Cochrane SC and Claire Roberts, clearly also enjoy the nitty gritty of patent law. In “Lore is Not Law: Statutory Interpretation of the Support and Sufficiency Requirements in the Patents Act 1990 (Cth)” the authors examine the legislative intent behind the Rasing the Bar amendments to the support and sufficiency requirements in the Australian Patents Act. In a detailed and scholarly analysis, the authors argue that the apparent statutory intent is at odds with its text. They further argue that this disconnect means that the interpretation now given to equivalent language in the Patents Act 1977 (UK) is not applicable in Australia.

Next, Chris Williams and Prianca Moodley use the “Mud” patent litigation as a case study to examine the issue of joint tortfeasorship and authorisation liability for patent infringement. In “Making Mud Stick – Demonstrating Joint Tortfeasorship and Authorisation Liability in Patent Litigation” the authors examine the application of the concept of joint tortfeasorship to IP infringement cases by the Australian courts. They also apply jurisprudence on authorisaiton liability for copyright infringement to their analysis of authorisation of patent infringements. In so doing, they raise important issues for patent (and IP more broadly) enforcement in an increasingly complex, global economy.

Rounding out a deep-dive into patents, Dr Sam Mutsamwira looks at how well the IP system in New Zealand serves scientist entrepreneurs. In “The IP Paradox for New Zealand Scientific Start-Ups: Navigating Value and Impediment in Technology Transfer”, Dr Mutsamwira reports on the finding of his recent research and how the IP system can both foster and act as an impediment to scientific innovation. Relevantly for our readers, the author offers some thoughts on how the IP profession can better account for this “paradox” in advising the scientific community.

Our next article provides a critical analysis of the High Court of Australia’s recent decision in Taylor v Killer Queen LLC. In “Hot ‘n Cold on Reputation: the High Court’s Decision in Taylor v Killer Queen” Angus Lang SC notes that this is the second time in recent years that the High Court has considered the role of reputation in the context of the Trade Marks Act 1995 (Cth). As he observes, “the topic is important because it tends to expose the Janus-faced rationales for trade mark law: is its purpose to protect consumers from deception, or is it to protect businesses from the misappropriation of their goodwill?”. Lang argues that the answer is both, to some degree. He goes on to observe that sometimes (as in Taylor V Killer Queen LLC) there is a tension between these dual rationales. In his analysis of the case, Lang unpacks this tension and concludes by suggesting that it may be preferable for the Trade Marks Act to be amended to squarely address the problem of free-riding, rather than “cloaking” it as deception. 

In a neat segway, Rob Batty’s review of Lisa Ramsey’s new book, Trademarks and Free Speech: Conflicts and Resolutions also deals with the purpose or purposes of trade mark protection. As Batty observes, while some of the examples Ramsey relies on may seem “overplayed” in the context of New Zealand or Australia, it is still worthwhile considering the impact of trade mark enforcement on freedom of expression generally.

This issue is replete with updates on recent cases from around Australia. It also includes a report from IP Australia on recent developments, including the update of the Patent Examiner’s Manual and publication of the Australian IP Report 2026.

In an issue that is otherwise light on copyright content, Andrew Brown KC brings us an update on the proposed introduction of an exception for parody and satire into the New Zealand Copyright Act 1994. Andrew uses this an opportunity to refresh our memories about the review of the New Zealand Copyright Act that was launched in 2018, but never completed. Our United States update addresses the controversial decision of the Supreme Court on intermediary liability for copyright infringement in Cox Communications v Sony Music Entertainment. While our European Union (“EU”) update takes another look at “originality” under European copyright law.

Finally, our United Kingdom (“UK”) colleagues take us through some of the implications of Brexit for EU and UK trade marks and offer some practical tips for those prosecuting trade marks in those jurisdictions.

During the preparation of this issue, many of you have been attending marquee IP events: Fordham University’s 33rd Annual Intellectual Property Law and Policy Conference in New York and the International Trade Mark Association’s annual meeting in London. Such events offer opportunities to network, to compare notes with international colleagues and to think about new and emerging issues of IP. I hope that you have returned home inspired and ready to get back to work. I am looking forward to seeing many of you in Sydney in August for our own marquee event: IPSANZ’s 39th Annual Conference. 

Intellectual Property Forum would be nothing without the people who so generously contribute their time and expertise, writing articles and providing regular updates (and dealing with my reminders and editorial changes with forbearance and good grace). Thank you also to the IPSANZ Secretariat for your support behind the scenes. 

Of course, the other people who are essential to Intellectual Property Forum are its readers. I hope that you enjoy this issue and welcome feedback about what you would like to see in future issues.

IN CONVERSATION WITH

 In Conversation with Greg Arthur KC
Greg Arthur KC, is a longtime member of IPSANZ and one of New Zealand’s leading intellectual property (“IP”) counsel. 

ARTICLES

Lore Is Not Law: Statutory Interpretation of the Support and Sufficiency Requirements in the Patents Act 1990 (Cth)
Cynthia Cochrane SC and Claire Roberts

This article argues that apparent legislative intention behind amendments to the support and sufficiency requirement in the Patents Act 1990 (Cth) is at odds with its text. In the authors’ view, the meaning now given to equivalent language in the Patents Act 1977 (UK) is not a reasonably available construction of the language and should not be followed.

The article begins first with an overview of the Australian amendments, then canvasses the United Kingdom (“UK”) position and next analyses the consideration given to the provisions in Australia to date in the light of orthodox principles of statutory construction. It is in this context that the article outlines the authors’ views as to how the provisions should be interpreted.

Making Mud Stick – Demonstrating Joint Tortfeasorship and Authorisation Liability in Patent Litigation
Chris Williams and Prianca Moodley

The “Mud wars” between Australian Mud Company2 (“Mud”) and Globaltech ran for over a decade in the Federal Court of Australia. In total there were 14 separate Federal Court patent proceedings filed, an oral application for special leave to appeal to the High Court, administration proceedings in the Western Australian Supreme Court, and global proceedings in each of the United States, Canada and South Africa. This article is intended to shed some light on how an infringement action taken against a comparatively small Western Australian technology company expanded into a global war between two publicly listed corporate groups and to highlight some of the difficulties in sheeting home liability for local infringing activity to a remotely located parent entity.

Hot ‘n Cold on Reputation: the High Court of Australia’s Decision in Taylor v Killer Queen LLC
Angus Lang SC

Taylor v Killer Queen LLC (“Killer Queen”)2 represented the second occasion in recent years that the High Court of Australia has considered the extent to which reputation is relevant to sign collision under the Trade Marks Act 1995 (Cth)(“the Act”), the other occasion being Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (“Self Care”).

The topic is important because it tends to expose the Janusfaced rationales for trade mark law: is its purpose to protect consumers from deception, or is it to protect businesses from the misappropriation of their goodwill? The answer is both, to some degree, but while sometimes those rationales are harmonious, at other times they are in tension. And in the latter case, it is necessary to understand the tension in order to resolve it appropriately.

The IP Paradox for New Zealand Scientific Start-Ups: Navigating Value and Impediment in Technology Transfer
Dr Sam Mutsamwira

Intellectual property (“IP”) plays a central role in innovation driven entrepreneurship, particularly for science-based start-ups whose value propositions are closely tied to proprietary knowledge, research outputs, and technological novelty. In policy and theory, formal IP protection is widely framed as a mechanism that incentivises innovation, facilitates knowledge commercialisation, and enables firms to appropriate returns from investment in research and development.2 As a result, IP protection has become a cornerstone of national innovation strategies and technology transfer systems. Nonetheless, important gaps remain in understanding how IP functions in practice for scientific ventures. Much of the existing literature adopts firmcentric, regional, or system-level perspectives, focusing on large firms, and aggregate outcomes such as patent counts, licensing activity, or spillover effects.

BOOK REVIEW

Trademarks and Free Speech: Conflicts and Resolutions
Rob Batty

CURRENT DEVELOPMENTS

AUSTRALIA

IP Australia

Cases

Miriam Zanker, Andrew Mullane, Meggie Zhang and Julian Siedle
Davies Collison Cave Law, Sydney

Glass half full: Bodum AG v HAG Import Corpn (Australia) Pty Ltd [2026] 
FCA 238
10 March 2026
Raper J

AstraZeneca v Pharmacor: The New Status Quo in Interlocutory Injunctions? [2026] 
FCA 88
16 February 2026
Downes J

Tom Cordiner KC, Melissa Marcus, Clare Cunliffe, Marcus Fleming, Amy Surkis, Tidja Joseph and Eliza Saunders
Barristers
Correspondents for Victoria, Western Australia, South Australia, Tasmania and Northern Territory

Black Star Pastry Pty Ltd v Richards (No 2) [2026] 
FCA 383 
8 April 2026
Justice Downe

Deakin University v Macreadie [2026] 
FCA 481 
24 April 2026
Justice Wheelahan

The NOCO Company v Brown and Watson International Pty Ltd [2026] 
FCAFC 44 
10 April 2026
Beach, Downes and Jackman JJ

New Aim Pty Ltd v Leung [2026] 
FCAFC 49 
20 April 2026
Moshinsky, Thawley and Button JJ

Kutti Bay Investments Pty Ltd v Rattlejack Innovations Pty Ltd [2026] 
FCA 422 
13 April 2026
Justice Rofe

Copyright Law Reform in New Zealand: Copyright (Parody and Satire) Amendment Bill

 

Stephanie Taylor and Saaira Gill
Bristows LLP
Correspondents for the United Kingdom

Brexit – Where Are We Now?

 EUROPEAN UNION

Even Old Books Can be Original
C-649/23 Institutul de Istorie şi Teorie Literară “G.Călinescu”, EU:C:2025:488 (“AG”), EU:C:2026:213 (“Court”)

NORTH AMERICA

UNITED STATES OF AMERICA

Guy Yonay
Pearl Cohen Zedek Latzer Baratz LLP
Correspondent for the United States of America

Supreme Court Limits Secondary Liability for Copyright Infringement