Prosecution history estoppel in the UK?

The doctrine of 'prosecution history estoppel' (PH estoppel) as developed in the United States has strong intuitive appeal, especially when applied to counterbalance a related patent law principle, the doctrine of equivalents. The doctrines are receiving increasing attention in US patent decisions, to the point where one patent litigator recently compared them to "two cars that keep bumping fenders. They are frequently returned to the shop for repairs". Could PH estoppel find its way into UK patent law? This article briefly examines the doctrine, its evolution in the US and the problems associated with importing the doctrine into the UK. As the EU legislation stands, Article 69 and the Protocol to the European Patent Convention (EPC) pose serious obstacles to using the doctrine directly in claim construction. However there appears to be some scope to apply the doctrine as a limited form of defence in infringement actions.

Anna Clark (2008) History’s Children: History Wars in the Classroom. UNSW Press, Sydney, 178 pages

“History’s Children” stems from Anna Clark’s 2004 postdoctoral research into the ways in which Australian students connect with the past, and aims at bringing some classroom perspectives into the public debates about Australian history education. Although the title makes reference to the “History Wars”, there is little evidence of contestation, engagement, passion or intellectual excitement in Clark’s conclusions about what happens in history classrooms. Rather, Clark’s small focus groups with 182 high school students in 34 high schools around Australia indicate that “it got a bit dismal hearing student after student being so dismissive of Australian history” (p. 143). Apart from some enthusiasm for the study of Australians at war, a sort of resigned boredom seems to characterise what students have to say about learning Australian history, despite their acknowledgement that it is important to “know about” it.

The digital Dark Ages : a retro-speculative history of possible futures

The Dark Ages are generally held to be a time of technological and intellectual stagnation in western development. But that is not necessarily the case. Indeed, from a certain perspective, nothing could be further from the truth. In this paper we draw historical comparisons, focusing especially on the thirteenth and fourteenth centuries, between the technological and intellectual ruptures in Europe during the Dark Ages, and those of our current period. Our analysis is framed in part by Harold Innis’s2 notion of "knowledge monopolies". We give an overview of how these were affected by new media, new power struggles, and new intellectual debates that emerged in thirteenth and fourteenth century Europe. The historical salience of our focus may seem elusive. Our world has changed so much, and history seems to be an increasingly far-from-favoured method for understanding our own period and its future potentials. Yet our seemingly distant historical focus provides some surprising insights into the social dynamics that are at work today: the fracturing of established knowledge and power bases; the democratisation of certain "sacred" forms of communication and knowledge, and, conversely, the "sacrosanct" appropriation of certain vernacular forms; challenges and innovations in social and scientific method and thought; the emergence of social world-shattering media practices; struggles over control of vast networks of media and knowledge monopolies; and the enclosure of public discursive and social spaces for singular, manipulative purposes. The period between the eleventh and fourteenth centuries in Europe prefigured what we now call the Enlightenment, perhaps moreso than any other period before or after; it shaped what the Enlightenment was to become. We claim no knowledge of the future here. But in the "post-everything" society, where history is as much up for sale as it is for argument, we argue that our historical perspective provides a useful analogy for grasping the wider trends in the political economy of media, and for recognising clear and actual threats to the future of the public sphere in supposedly democratic societies.

The digital Dark Ages : a retro-speculative history of possible futures

The Dark Ages are generally held to be a time of technological and intellectual stagnation in western development. But that is not necessarily the case. Indeed, from a certain perspective, nothing could be further from the truth. In this paper we draw historical comparisons, focusing especially on the thirteenth and fourteenth centuries, between the technological and intellectual ruptures in Europe during the Dark Ages, and those of our current period. Our analysis is framed in part by Harold Innis’s2 notion of "knowledge monopolies". We give an overview of how these were affected by new media, new power struggles, and new intellectual debates that emerged in thirteenth and fourteenth century Europe. The historical salience of our focus may seem elusive. Our world has changed so much, and history seems to be an increasingly far-from-favoured method for understanding our own period and its future potentials. Yet our seemingly distant historical focus provides some surprising insights into the social dynamics that are at work today: the fracturing of established knowledge and power bases; the democratisation of certain "sacred" forms of communication and knowledge, and, conversely, the "sacrosanct" appropriation of certain vernacular forms; challenges and innovations in social and scientific method and thought; the emergence of social world-shattering media practices; struggles over control of vast networks of media and knowledge monopolies; and the enclosure of public discursive and social spaces for singular, manipulative purposes. The period between the eleventh and fourteenth centuries in Europe prefigured what we now call the Enlightenment, perhaps moreso than any other period before or after; it shaped what the Enlightenment was to become. We claim no knowledge of the future here. But in the "post-everything" society, where history is as much up for sale as it is for argument, we argue that our historical perspective provides a useful analogy for grasping the wider trends in the political economy of media, and for recognising clear and actual threats to the future of the public sphere in supposedly democratic societies.

History of critical criminology in Australia

Those working in the critical criminology tradition have been centrally concerned with the social construction, variability and contingency of the criminal label. The concern is no less salient to a consideration of critical criminology itself and any history of critical criminology (in Australia or elsewhere) should aim itself to be critical in this sense. The point applies with equal force to both of the terms ‘critical’ and ‘criminology’. The want of a stable theoretical object has meant that criminology itself needs to be seen not as a distinct discipline but as a composite intellectual and governmental hybrid, a field of studies that overlaps and intersects many others (sociology, law, psychology, history, anthropology, social work, media studies and youth studies to name only a few). In consequence, much of the most powerful work on subjects of criminological inquiry is undertaken by scholars who do not necessarily define themselves as criminologists first and foremost, or at all. For reasons that should later become obvious this is even more pronounced in the Australian context. Although we may appear at times to be claiming such work for criminology, our purpose is to recognize its impact on and in critical criminology in Australia.

Book Review : Bellanta, Melissa (2012) Larrikins : A History. Brisbane: University of Queensland Press.

This book has been painstakingly researched by a scholar whose intellectual competencies span several disciplines: history, sociology, criminology, culture, drama and film studies. It is theoretically sophisticated and yet not dense as it reads like a novel with an abundance of interesting complex characters.

‘We are here to make history’: The United Nations climate summit 2014

In the wake of the 400,000 strong Climate March in New York and the Flood Wall Street protest, the United Nations hosted a Climate Summit in New York on the 23 September 2014. The event was intended to be a catalyst for the development of a binding, fair, and ambitious international agreement upon climate change.

Moving on (part 2): Power and the child in curriculum history

This paper is the second in a two-part series that maps continuities and ruptures in conceptions of power and traces their effects in educational discourse on 'the child'. It delineates two post-Newtonian intellectual trajectories through which concepts of 'power' arrived at the theorization of 'the child': the paradoxical bio-physical inscriptions of human-ness that accompanied mechanistic worldviews and the explanations for social motion in political philosophy. The intersection of pedagogical theories with 'the child' and 'power' is further traced from the latter 1800s to the present, where a Foucaultian analytics of power-as-effects is reconsidered in regard to histories of motion. The analysis culminates in an examination of post-Newtonian (dis)continuities in the theorization of power, suggesting some productive paradoxes that inhabit turn of the 21st-century conceptualizations of the social.

The purposes of history? Curriculum studies, invisible objects and twenty-first century societies

A new intellectual epoch has generated new enterprises to suit changed beliefs and circumstances. A widespread sentiment in both formal historiography and curriculum studies reduces the “new” to the question of how knowledge is recognized as such, how it is gained, and how it is represented in narrative form. Whether the nature of history and conceptions of knowledge are, or ought to be, central considerations in curriculum studies and reducible to purposes or elevated as present orientated requires rethinking. This paper operates as an incitement to discourse that disrupts the protection and isolation of primary categories in the field whose troubling is overdue. In particular, the paper moves through several layers that highlight the lack of settlement regarding the endowment of objects for study with the status of the scientific. It traces how some “invisible” things have been included within the purview of curriculum history as objects of study and not others. The focus is the making of things deemed invisible into scientific objects (or not) and the specific site of analysis is the work of William James (1842-1910). James studied intensely both child mind and the ghost, the former of which becomes scientized and legitimated for further study, the latter abjected. This contrast opens key points for reconsideration regarding conditions of proof, validation criteria, and subject matters and points to opportunities to challenge some well-rehearsed foreclosures within progressive politics and education.

Visions of Past Glory: Nationalism and the Construction of Early Finnish History

The study is an examination of how the distant national past has been conceived and constructed for Finland from the mid-sixteenth century to the Second World War. The author argues that the perception and need of a national 'Golden Age' has undergone several phases during this period, yet the perceived Greatness of the Ancient Finns has been of great importance for the growth and development of the fundamental concepts of Finnish nationalism. It is a question reaching deeper than simply discussing the Kalevala or the Karelianism of the 1890s. Despite early occurrences of most of the topics the image-makers could utilize for the construction of an Ancient Greatness, a truly national proto-history only became a necessity after 1809, when a new conceptual 'Finnishness' was both conceived and brought forth in reality. In this process of nation-building, ethnic myths of origin and descent provided the core of the nationalist cause - the defence of a primordial national character - and within a few decades the antiquarian issue became a standard element of the nationalist public enlightenment. The emerging, archaeologically substantiated, nationhood was more than a scholarly construction: it was a 'politically correct' form of ethnic self-imaging, continuously adapting its message to contemporary society and modern progress. Prehistoric and medieval Finnishness became even more relevant for the intellectual defence of the nation during the period of Russian administrative pressure 1890-1905. With independence the origins of Finnishness were militarized even further, although the 'hot' phase of antiquarian nationalism ended, as many considered the Finnish state reestablished after centuries of 'dependency'. Nevertheless, the distant past of tribal Finnishness and the conceived Golden Age of the Kalevala remained obligating. The decline of public archaeology is quite evident after 1918, even though the national message of the antiquarian pursuits remained present in the history culture of the public. The myths, symbols, images, and constructs of ancient Finnishness had already become embedded in society by the turn of the century, like the patalakki cap, which remains a symbol of Finnishness to this day. The method of approach is one of combining a broad spectrum of previously neglected primary sources, all related to history culture and the subtle banalization of the distant past: school books, postcards, illustrations, festive costumes, drama, satirical magazines, novels, jewellery, and calendars. Tracing the origins of the national myths to their original contexts enables a rather thorough deconstruction of the proto-historical imaginary in this Finnish case study. Considering Anthony D. Smith's idea of ancient 'ethnies' being the basis for nationalist causes, the author considers such an approach in the Finnish case totally misplaced.

History, Transfer, Politics : Five studies on the legacy of Uppsala philosophy

The Uppsala school of Axel Hägerström can be said to have been the last genuinely Swedish philosophical movement. On the other hand, the Swedish analytic tradition is often said to have its roots in Hägerström s thought. This work examines the transformation from Uppsala philosophy to analytic philosophy from an actor-based historical perspective. The aim is to describe how a group of younger scholars (Ingemar Hedenius, Konrad Marc-Wogau, Anders Wedberg, Alf Ross, Herbert Tingsten, Gunnar Myrdal) colonised the legacy of Hägerström and Uppsala philosophy, and faced the challenges they met in trying to reconcile this legacy with the changing philosophical and political currents of the 1930s and 40s. Following Quentin Skinner, the texts are analysed as moves or speech acts in a particular historical context. The thesis consists of five previously published case studies and an introduction. The first study describes how the image of Hägerström as the father of the Swedish analytic tradition was created by a particular faction of younger Uppsala philosophers who (re-) presented the Hägerströmian philosophy as a parallel movement to logical empiricism. The second study examines the confrontations between Uppsala philosophy and logical empiricism in both the editorial board and in the pages of Sweden s leading philosophical journal Theoria. The third study focuses on how the younger generation redescribed Hägerströmian legal philosophical ideas (Scandinavian Legal Realism), while the fourth study discusses how they responded to the accusations of a connection between Hägerström s value nihilistic theory and totalitarianism. Finally, the fifth study examines how the Swedish social scientist and Social Democratic intellectual Gunnar Myrdal tried to reconcile value nihilism with a strong political programme for social reform. The contribution of this thesis to the field consists mainly in a re-evaluation of the role of Uppsala philosophy in the history of Swedish philosophy. From this perspective the Uppsala School was less a collection of certain definite philosophical ideas than an intellectual legacy that was the subject of fierce struggles. Its theories and ideas were redescribed in various ways by individual actors with different philosophical and political intentions.

Owning the new economy: A guide to intellectual property management for Australia's clean technology sector

Australia's history of developing and managing the intellectual property rights of domestic innovations is – at best – mixed. The relevant immaturity of Australia's public sector commercialisation infrastructure has, over recent decades, been the subject of both stinging academic commentary and not insubstantial juridical disbelief. That said, improvements have been observed, and increasingly, private sector involvement in public sector innovation has allowed for a deepening refinement of domestic approaches to IP retention and ongoing management. Rather than a bare critique of Australia's IP management track-record, or a call for specific law reform, this manual engages at a more practical level some of the foundational questions that ought be asked by entities involved in the 'cleantech' industries. Beginning simply at what is IP and why it matters, this manual examines the models of IP management available to market participants around the world. The process of IP management is defined and assessed through a commercial lens; assessing the 'pros' and 'cons' of each management choice with a view to equipping the reader to determine which approach may be best adapted to their given clean tech project. The manual concludes with a brief survey of alternative models of Intellectual Property management, including relevant examples from overseas and prominent suggestions arising out of the academic discourse. It appears inevitable that the global warming challenge will prompt specific legislative, regulatory and multi-lateral responses by nation states, however, the ultimate form of any such response remains a highly contested political and social issue. Accordingly, the structure of this manual, and the discussion points raised herein, seek introduce the reader to some of the more contentious debates occurring around the world at the intersection between IP and climate change.

Turing and the Trans-Pacific Partnership: Intellectual Property, Public Health, and Access to Essential Medicines

A recent controversy in the United States over drug pricing by Turing Pharmaceuticals AG has raised larger issues in respect of intellectual property, access to medicines, and the Trans-Pacific Partnership (TPP). In August 2015, Turing Pharmaceuticals AG – a private biopharmaceutical company with offices in New York, the United States, and Zug, Switzerland - acquired the exclusive marketing rights to Daraprim in the United States from Impax Laboratories Incorporated. Martin Shkreli, Turing’s Founder and Chief Executive Officer, maintained: “The acquisition of Daraprim and our toxoplasmosis research program are significant steps along Turing’s path of bringing novel medications to patients with serious disorders, some of whom often go undiagnosed and untreated.” He emphasised: “We intend to invest in the development of new drug candidates that we hope will yield an even better clinical profile, and also plan to launch an educational effort to help raise awareness and improve diagnosis for patients with toxoplasmosis.” In September 2015, there was much public controversy over the decision of Martin Shkreli to raise the price of a 62 year old drug, Daraprim, from $US13.50 to $US750 a pill. The drug is particularly useful in respect to the treatment and prevention of malaria, and in the treatment of infections in individuals with HIV/AIDS. Daraprim is listed on the World Health Organization’s (WHO) List of Essential Medicines. In the face of much criticism, Martin Shkreli has said that he will reduce the price of Daraprim. He observed: “We've agreed to lower the price on Daraprim to a point that is more affordable and is able to allow the company to make a profit, but a very small profit.” He maintained: “We think these changes will be welcomed.” However, he has been vague and ambiguous about the nature of the commitment. Notably, the lobby group, Pharmaceutical Research and Manufacturers of America (PhARMA), disassociated itself from the claims of Turing Pharmaceuticals. The group said: “PhRMA members have a long history of drug discovery and innovation that has led to increased longevity and improved lives for millions of patients.” The group noted: “Turing Pharmaceutical is not a member of PhRMA and we do not embrace either their recent actions or the conduct of their CEO.” The biotechnology peak body Biotechnology Industry Organization also sought to distance itself from Turing Pharmaceuticals. A hot topic: United States political debate about access to affordable medicines This controversy over Daraprim is unusual – given the age of drug concerned. Daraprim is not subject to patent protection. Nonetheless, there remains a monopoly in respect of the marketplace. Drug pricing is not an isolated problem. There have been many concerns about drug pricing – particularly in respect of essential medicines for HIV/AIDS, tuberculosis, and malaria. This recent controversy is part of a larger debate about access to affordable medicines. The dispute raises larger issues about healthcare, consumer rights, competition policy, and trade. The Daraprim controversy has provided impetus for law reform in the US. US Presidential Candidate Hillary Clinton commented: “Price gouging like this in this specialty drug market is outrageous.” In response to her comments, the Nasdaq Biotechnology Index fell sharply. Hillary Clinton has announced a prescription drug reform plan to protect consumers and promote innovation – while putting an end to profiteering. On her campaign site, she has emphasised that “affordable healthcare is a basic human right.” Her rival progressive candidate, Bernie Sanders, was also concerned about the price hike. He wrote a letter to Martin Shkreli, complaining about the price increase for the drug Daraprim. Sanders said: “The enormous, overnight price increase for Daraprim is just the latest in a long list of skyrocketing price increases for certain critical medications.” He has pushed for reforms to intellectual property to make medicines affordable. The TPP and intellectual property The Daraprim controversy and political debate raises further issues about the design of the TPP. The dispute highlights the dangers of extending the rights of pharmaceutical drug companies under intellectual property, investor-state dispute settlement, and drug administration. Recently, the civil society group Knowledge Ecology International published a leaked draft of the Intellectual Property Chapter of the TPP. Knowledge Ecology International Director, James Love, was concerned the text revealed that the US “continues to be the most aggressive supporter of expanded intellectual property rights for drug companies.” He was concerned that “the proposals contained in the TPP will harm consumers and in some cases block innovation.” James Love feared: “In countless ways, the Obama Administration has sought to expand and extend drug monopolies and raise drug prices.” He maintained: “The astonishing collection of proposals pandering to big drug companies make more difficult the task of ensuring access to drugs for the treatment of cancer and other diseases and conditions.” Love called for a different approach to intellectual property and trade: “Rather than focusing on more intellectual property rights for drug companies, and a death-inducing spiral of higher prices and access barriers, the trade agreement could seek new norms to expand the funding of medical research and development (R&D) as a public good, an area where the US has an admirable track record, such as the public funding of research at the National Institutes of Health (NIH) and other federal agencies.” In addition, there has been much concern about the Investment Chapter of the TPP. The investor-state dispute settlement regime would enable foreign investors to challenge government policy making, which affected their investments. In the context of healthcare, there is a worry that pharmaceutical drug companies will deploy their investor rights to challenge public health measures – such as, for instance, initiatives to curb drug pricing and profiteering. Such concerns are not merely theoretical. Eli Lilly has brought an investor action against the Canadian Government over the rejection of its drug patents under the investor-state dispute settlement regime of the North American Free Trade Agreement (NAFTA). The Health Annex to the TPP also raises worries that pharmaceutical drug companies will able to object to regulatory procedures in respect of healthcare. It is disappointing that the TPP – in the leaks that we have seen – has only limited recognition of the importance of access to essential medicines. There is a need to ensure that there are proper safeguards to provide access to essential medicines – particularly in respect of HIV/AIDs, malaria, and tuberculosis. Moreover, there must be protection against drug profiteering and price gouging in any trade agreement. There should be strong measures against the abuse of intellectual property rights. The dispute over Turing Pharmaceuticals AG and Daraprim is an important cautionary warning in respect of some of the dangers present in the secret negotiations in respect of the TPP. There is a need to preserve consumer rights, competition policy, and public health in trade negotiations over an agreement covering the Pacific Rim.