[代写范文]编号171416–澳洲知识产权法论文代写

此文是我们在2017年为澳洲墨尔本莫纳什大学的学弟学妹写的一篇范文,关于知识产权的一个问答类型的文章。我们截取了其中几道题目来给大家做示范。第一题主要是说由于缺乏人为干预和创新,自然不能获得专利。 1990年专利法第18(3)条规定,植物和动物以及生成植物和动物的生物过程不是可授予专利的发明。这一规定排除了专利主题的性质。然而,这种过程的微生物过程或产品可能具有专利性。尽管自然本身不具有专利性,但使用自然生物过程的发明可能具有专利性。

Nature is not patentable because of lack of human intervention and innovation. Section 18(3) of Patents Act 1990 provides that plants and animals as well as the biological processes generating plants and animals are not patentable inventions. This provision excludes nature from the subject matter of patenting. However, a microbiological process or product of such a process may be patentable (section 18(4) of Patents Act 1990). Although nature by itself is not patentable, the inventions using natural biological processes may be patentable. In Diamond v Chakrabarty (1980) 447 U.S. 303, the Supreme Court held that microorganisms produced by genetic engineering were not precluded from patent protection. In this case, plasmids were added to a bacterium and were used to break down components of crude oil. Although bacterium is natural, the modification of it was a product of human ingenuity. The modified product is not completely natural and markedly different from that found in nature. The modified bacteria were hence patentable. In this case, the court argued that whether an invention embraces living matter has no bearings with its patentability and established a test for the patentability of natural living matter. If the living matter is the result of human intervention, namely the result of human ingenuity, invention and research, and markedly different from what is found in nature, it is patentable.

这一题是说版权的基本特征,它只保护除想法,程序或概念之外的其他表达。关于软件,版权禁止作者复制他人的软件。但是,这并不妨碍作者为了同一目的而将他人的软件中的想法或概念复制。

The fundamental feature of copyright is that it only protects express other than ideas, procedures or concepts. With regard to software, copyright prohibits a writer from copying others’ software. However, it does not prevent a writer from copying the ideas or concepts in others’ software for the same purpose. If the software you write only has copyright and been published publicly, you cannot prohibit others from developing new form of software by using the ideas or concepts in your software. In this circumstance, your software will lose its commercial value. Different from copyright, software patents provide a patent monoploy to the owner of the software. The patentee obtains an exclusive rights of the patent to exploit or authorise others to exploit the invention (section 13(1) of Patents Act 1990). Anyone else is not allowed to use the concepts or ideas in the software without the consent or legal exceptions. The writer of the software is hence better protected with regard to expressions and ideas respectively under copyright and patent law.

最后一题主要是涉及保密信息方面的问题,企业的商业秘密以及员工获得的一般知识和技能在法律上有所区别。 诸如公式和客户名称之类的商业秘密是受法律保护的机密信息,并且不允许披露。 除非雇佣合同中的明确保密条款另有规定,否则员工的“专有技术”通常是不可保护的。

With regard to confidential information, trade secrets of a business and general knowledge and skills obtained by employees are distinguished in law. Trade secrets such as formulae and client names are confidential information protected under the law and no disclosure is allowed. Employee “know-how” is usually not protectable unless otherwise stipulated in express confidentiality provisions in employment contract. Regarding former employees’ obligation of confidentiality, in Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, Gowan J argued that former employees have obligation of confidentiality to trade secrets and client names and other confidential information obtained in the employer’s business other than special skills or common knowledge acquired in the course of employment.

A difficulty arises when an employee possesses information both partly public and partly private. In this circumstance, only material in the public domain can be used and confidential information cannot be misused (Terrapin Ltd v Builders Supply Company (Hayes) Ltd (1960) RPC 128). Anyway, no breach of confidence exists where information has been made public (Seven Network Ltd v News Ltd [2007] FCA 1062). The question is to differentiate private information from public information. An employee can only use information in the public domain.