Thursday Thingies

August is going quickly, but this Kat has slowed down to reflect on the latest IP news. Here are the latest updates - along with a reminder to check out the IPKat's forthcoming events page.

Designs law consultations

The call for submissions on the proposed changes to the Australian design rights system are open until this Sunday, 13 August 2023 (AEST). The proposed changes would introduce protection for virtual designs (including screensavers, virtual reality displays, and graphical user interfaces), partial designs and incremental designs (as discussed by Katfriend, Dr Tyrone Berger, the previous Australian design rights reforms in 2021 declined to address those issues). IP Australia has a page with a survey and option to upload submissions here.

News 

Last week, the living relatives of Henrietta Lacks reached a settlement with the biotechnology company, Thermo Fisher Scientific. The case centred on HeLa, an ‘immortal’ cell line produced from the cervical cancer cells of Henrietta Lacks, an African-American woman who died from the cancer in Baltimore in 1951. A lawsuit filed in 2021 argued that the company had unjustly enriched itself using Lacks's cells, which were harvested without her knowledge or consent, as part of “a racially unjust medical system.” The settlement was reached on 1 August 2023, which would have been Henrietta Lacks’s 103rd birthday. 

The ChatGPT-creator, OpenAI, has initiated a trademark infringement and unfair competition lawsuit against the (unaffiliated) Open Artificial Intelligence, Inc., which owns the domain name www.open.ai. The complaint, lodged on Friday 4 August in Northern California, claims that the “Open Artificial Intelligence” name stands to confuse “millions of users of OpenAI’s products into mistakenly believing that [they] have any connection to, association with, or sponsorship by OpenAI when, in fact, there is none.” Details here.

Late last month, one of the first plant variety infringement cases was decided in China since the entry into force of their new Seed Law on 1 March 2022. The reforms expanded the scope of plant variety protection beyond propagating material to include harvested material (such as fruits and cut flowers), in line with UPOV 1991. The international grape breeder, International Fruit Genetics (IFG), won their infringement case in Yunnan, China, involving the production and sale of propagating and harvested material from their protected grape variety, called 'IFG六' ('IFG Six'), which is sold under the trademark 甜蜜蓝宝石 (Sweet Sapphire). 

On the topic of plant variety rights in China, the major New Zealand kiwifruit marketer, Zespri, also lodged an infringement claim last week in Nanjing, China, over the unauthorised production and sale of their protected gold kiwifruit variety, called 'Gold3', which is sold under the trademark SunGold. Readers may recall that Katfriend Doug Calhoun commented on Zespri's previous lawsuit in New Zealand over the export of gold kiwifruit to China: in 2021, the Court of Appeal held that since the NZ law did not apply on an extra-territorial basis, no infringement of the NZ plant variety rights had taken place.