The KeepCup patent W O 2014/186835, says following in its abstract and description of the invention in claim 1. Title: A BEVERAGE CUP 3o 20 40 FIGURE 1A (57) Abstract: A closure for a beverage cup. The closure comprises a lid having a drinking opening and a rotatable member in rotatable engagement with the lid. The rotatable member swivels laterally of the lid between an open and a closed position. The rotatable member being adapted to close the opening in the lid when the rotatable member is in a closed position. The closure also comprises a vent in the lid that vents into a void under the rotatable member. When the rotatable member is in the closed position the void is sealed to an outside of the closure and when the rotatable member is in the open position the void is open to the outside.CLAIMS 1. A closure for a beverage cup, the closure comprising: a lid having a drinking opening; a rotatable member rotatably engaged with the lid at an attachment such that the rotatable member swivels laterally of the lid between an open and a closed position, the rotatable member being adapted to close the opening in the lid when the rotatable member is in a closed position; and the rotatable member being engaged with the lid at the attachment by a cam engagement so that when the rotatable member is rotated to the closed position the cam engagement causes the rotatable member to urge against the lid.What would KeepCup have to establish to show that the Karma cup is an infringement of their patent? Does the difference in shape of the cups and the individual elements avoid the possibility of infringement?Activity 3: - Practice Exercise (will not be done in class). This is an additional problem for those who want to attempt a written answer in their own time. This is a past Homework exercise question.Carmen Santiago is a scientist specialising in haematology (Blood). She is also a part-time Master of Marketing student in the business faculty of The Greater University of Portsea (GUP), and tutors in undergraduate subjects on haematology for the science faculty. She works part-time at Vampires-R-Us Pty Ltd (Vampires) a specialist phlebotomy firm (Phlebotomy means drawing blood or taking blood and testing it.) that processes blood test requests from doctors in hospitals, private clinics, and general practices. Her duties at Vampires include collecting blood from patients, and processing and analysing the results. She enjoys this job as she gets to speed around in a small car picking up urgent samples. She takes the blood samples from patients, and this process requires taking 5 mils of blood from patients for basic tests but can involve larger amounts for multiple tests depending on the number requested by the doctors. Carmen though has become frustrated with the amount of blood that is required for these multiple tests. She knows because her mother is a diabetic that blood glucose can be tested with only a drop of blood. This inspires her to reinvent the whole approach to taking blood. She develops a superfast diagnostic technique of testing blood for up to 25 major things such as (blood glucose, iron levels, etc.) from one drop of blood rather than the current quantities required. She uses her connections (fellow students and lecturers) who work at the GUP science faculty to help her develop the prototype machine from her drawings. She does not pay the staff, who provide their skills without cost. The staff at GUP use the GUP equipment to fine-tune the prototype.She then conducts trials of the prototype at Vampires collection sites. The data from these trials and the expertise of Vampires’ staff enable her to further refine the prototype and perfect the central idea for her patent. The Vampires trials run for a period of 2 years, and they were not paid for the trials. The trials have shown how revolutionary the machine is in processing efficiently and quickly blood from a single drop.She applied for a patent in her name and has been advised, it will be granted shortly. She has called her machine the “purosangue” meaning “pure blood.” The other competing blood collection services have become aware of this device from the patent register, and there is a bidding war between the different services to use the patented device.Carmen is concerned about the possibility of GUP or Vampires claiming ownership of her patent. Explain to Carmen the arguments that can be raised for and against ownership claims by GUP or Vampires. In your answer use relevant sections of the Patents Act 1990, and cases.
Question
The KeepCup patent W O 2014/186835, says following in its abstract and description of the invention in claim 1. Title: A BEVERAGE CUP 3o 20 40 FIGURE 1A (57) Abstract: A closure for a beverage cup. The closure comprises a lid having a drinking opening and a rotatable member in rotatable engagement with the lid. The rotatable member swivels laterally of the lid between an open and a closed position. The rotatable member being adapted to close the opening in the lid when the rotatable member is in a closed position. The closure also comprises a vent in the lid that vents into a void under the rotatable member. When the rotatable member is in the closed position the void is sealed to an outside of the closure and when the rotatable member is in the open position the void is open to the outside.CLAIMS 1. A closure for a beverage cup, the closure comprising: a lid having a drinking opening; a rotatable member rotatably engaged with the lid at an attachment such that the rotatable member swivels laterally of the lid between an open and a closed position, the rotatable member being adapted to close the opening in the lid when the rotatable member is in a closed position; and the rotatable member being engaged with the lid at the attachment by a cam engagement so that when the rotatable member is rotated to the closed position the cam engagement causes the rotatable member to urge against the lid.What would KeepCup have to establish to show that the Karma cup is an infringement of their patent? Does the difference in shape of the cups and the individual elements avoid the possibility of infringement?Activity 3: - Practice Exercise (will not be done in class). This is an additional problem for those who want to attempt a written answer in their own time. This is a past Homework exercise question.Carmen Santiago is a scientist specialising in haematology (Blood). She is also a part-time Master of Marketing student in the business faculty of The Greater University of Portsea (GUP), and tutors in undergraduate subjects on haematology for the science faculty. She works part-time at Vampires-R-Us Pty Ltd (Vampires) a specialist phlebotomy firm (Phlebotomy means drawing blood or taking blood and testing it.) that processes blood test requests from doctors in hospitals, private clinics, and general practices. Her duties at Vampires include collecting blood from patients, and processing and analysing the results. She enjoys this job as she gets to speed around in a small car picking up urgent samples. She takes the blood samples from patients, and this process requires taking 5 mils of blood from patients for basic tests but can involve larger amounts for multiple tests depending on the number requested by the doctors. Carmen though has become frustrated with the amount of blood that is required for these multiple tests. She knows because her mother is a diabetic that blood glucose can be tested with only a drop of blood. This inspires her to reinvent the whole approach to taking blood. She develops a superfast diagnostic technique of testing blood for up to 25 major things such as (blood glucose, iron levels, etc.) from one drop of blood rather than the current quantities required. She uses her connections (fellow students and lecturers) who work at the GUP science faculty to help her develop the prototype machine from her drawings. She does not pay the staff, who provide their skills without cost. The staff at GUP use the GUP equipment to fine-tune the prototype.She then conducts trials of the prototype at Vampires collection sites. The data from these trials and the expertise of Vampires’ staff enable her to further refine the prototype and perfect the central idea for her patent. The Vampires trials run for a period of 2 years, and they were not paid for the trials. The trials have shown how revolutionary the machine is in processing efficiently and quickly blood from a single drop.She applied for a patent in her name and has been advised, it will be granted shortly. She has called her machine the “purosangue” meaning “pure blood.” The other competing blood collection services have become aware of this device from the patent register, and there is a bidding war between the different services to use the patented device.Carmen is concerned about the possibility of GUP or Vampires claiming ownership of her patent. Explain to Carmen the arguments that can be raised for and against ownership claims by GUP or Vampires. In your answer use relevant sections of the Patents Act 1990, and cases.
Solution
This is a complex question that involves two main parts.
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Infringement of KeepCup's patent by Karma cup: To establish that the Karma cup is an infringement of their patent, KeepCup would need to show that the Karma cup uses the same or a similar mechanism as described in their patent claim. This includes a lid with a drinking opening, a rotatable member that swivels laterally of the lid between an open and a closed position, and a vent in the lid that vents into a void under the rotatable member. The shape of the cups and individual elements may not necessarily avoid the possibility of infringement if the functional elements described in the patent claim are present in the Karma cup.
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Ownership claims by GUP or Vampires on Carmen's patent: The Patents Act 1990 (Cth) s 15(1) states that an invention may only be patented by the inventor or their assignee. As Carmen is the inventor of the "purosangue" machine, she is the rightful owner of the patent. However, GUP or Vampires could potentially claim ownership if they can prove that Carmen was acting within the scope of her employment when she invented the machine. This could be difficult to establish given that Carmen developed the machine in her own time and used her own resources. However, the fact that she used GUP's equipment and conducted trials at Vampires' collection sites could potentially complicate matters. Relevant cases to consider include University of Western Australia v Gray (2009) 179 FCR 346, where it was held that an employee does not have a general duty to assign their inventions to their employer, and Advanced Building Systems v Ramset Fasteners (1998) 194 CLR 171, where it was held that the use of an employer's resources does not necessarily mean that the employer owns the patent.
Please note that this is a general overview and not legal advice. Carmen should consult with a patent attorney for advice tailored to her specific circumstances.
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