IP: Trade Marks & Patents 76085 Assessment Task 1: Patents Problem Question This task is to write a memo of advice on the following legal problem relating to the law of patents. You should imagine that you have been asked by a more senior lawyer in your law firm to carry out the initial research into your client's problems. This will involve: |dentifying the legal issues that are raised; |dentifying the relevant statutory provisions and case law; ldentifying how the law applies to the facts you have been given; |dentifying what additional facts you would need to know to make your advice more precise/accurate; Assessing which arguments are stronger and weaker; and + Coming to a conclusion as to the likelihood of success. 1500 words (see the Subject Outline and marking rubric for assessment criteria) Hypothetical Facts Pat Smart works in sales for a medical imaging company in Sydney called MediFrame. As part of her role she meets with doctors and health administrators to sell the company's leading product MediScan500. The MediScan500 is a top-of-the-line, in-clinic unit that general practitioners (GPs) can use to capture high-quality pictures of skin, including moles, sores or areas of irritation that can be sent to a skin cancer specialist or dermatologist for review. The images can also be stored by the general practitioner and compared against future images, allowing a doctor to monitor the progression of skin disorders or changes in moles. Pat spends a lot of time discussing the benefits of MediScan500 with doctors across the State and learns that one of the main frustrations of doctors in regional areas is the difficulty in sending high- resolution images to specialists due to connectivity issues. They wished they had a tool that could assist in diagnosing skin disorders and identify potential concerning moles in the medical practice. The doctor could then decide whether to refer the patient to a skin cancer specialist or dermatologist for further treatment. Pat is also a gamer and amateur computer programmer in her spare time. She has enjoyed creating her own Al bot built upon a popular large language model. She calls her bot 'SmartieP and spends a lot of time in conversation with SmartieP, creating new music, writing fan fiction about her favourite movie series, and creating new recipes. One night, after a long day of meetings with doctors, Pat asks SmartieP whether the bot has any ideas on creating a tool to review images captured by MediScan500 and identify different skin disorders, including skin cancer. Over months, Pat worked with SmartieP to create a software tool that uses artificial intelligence to review images captured by MediScan500 and identify potential skin disorders. In the process, Pat uploads MediFrame technical guides and specifications relating to the MediScan500. The resulting tool, SmartieScan, is remarkably accurate. It has an accuracy rate of 95% in identifying skin cancer and can even detect pre-cancerous lesions that skilled skin cancer specialists miss. On 12 February 2023 Pat demonstrates SmartieScan to a group of doctors she knows through her work with MediFrame and is excited when one doctor contacts her asking how he can order the SmartieScan system to use with their MediScan500. On 1 February 2024 Pat files a complete patent application for the SmartieScan. Claim 1 of the specification states: An automated method for scanning a body part with an imaging system to take an image which image is compared against a database to identify cancerous skin lesions. She then leaves MediFrame and starts selling the SmartieScan full-time. In her marketing presentations she always tells customers that SmartieP should be considered a co-inventor of the SmartieScan, even though her lawyer would not allow her to put that on the patent application. MediFrame soon becomes aware of the SmartieScan system when doctors call them to ask how to purchase it for use with the MediScan500. MediFrame's legal team writes to Pat stating that they are entitled to the invention and stating she should immediately arrange for it to be transferred to their name on the Patent Register and account to them for any profits made so far. Meanwhile, Erik, an engineer who worked at MediFrame in the early 2000s, has also been working on a software tool and apparatus that patients can use in their own home to regularly scan moles and freckles to record changes and alert them if they begin to look cancerous. The device is essentially a small, handheld computer with a camera. Because Erik did not have access to MediFrame's database or materials, he used images of both normal and cancerous moles that he found on the internet to train his Al software. The accuracy of his Al and device is not as high as for Pat's device, but he claims it is only intended to identify 'at-risk' patients, who should then seek an appointment with their GP to confirm the diagnosis using the MediScan500. Pat is furious when she discovers Erik's plans and threatens to sue him for infringement Advise Pat on (a) MediFrame's allegations and claims (10 marks) and (b) any action she can take against Erik. You should also consider whether her own patent is vulnerable to attack. (25 marks)