Tougher patent process aims to increase innovation

By Daniella Goldberg
Friday, 01 March, 2002

Changes to Australian patent laws from April 1 will make filing harder, but will also bring the country more into line with US and European patent laws.

Patent attorney Dr Trevor Davies, of law firm Allens Arthur Robinson, said that with the amendments, the government aimed to raise the barrier of inventive threshold in Australia.

"It is much easier to get patent protection in Australia compared to the US and Europe," Davies said.

"Typically, an Australian biotechnology company will file for an Australian patent for its invention before it uses the same documentation to apply for a world-wide patent."

The problem has been that the standard application for an Australian patent may not meet international requirements, and additional documentation is required. This may no longer be the case after April 1.

"Companies such as Gradipore or Proteome Systems that are pioneers in their research areas and have patents in core platform technology areas will not be as affected by the change in law," Davies said.

Those biotechnology companies had a global viewpoint and were used to preparing patent applications that meet the international requirements, he said.

The government proposed the changes to the law in response to the 2001 Ergas Report on Intellectual Property and Competition Review.

"The government intention is to give the inventor more confidence that a patent granted after April 1 will be sounder," Davies said. "However, the new laws will make it more of an administrative burden on applicants to satisfy the disclosure requirements."

For example, there will be stricter tests for novelty and inventive steps. Applicants will also be required to disclose to the Commissioner of Patents the results of all searches, carried out in Australia and overseas up until the time when the patent is granted. Previously, the application only required Australian searches.

"A lot of these companies may not be aware how these changes in the law will affect them, but they should be forewarned before they file their patents," Davies said.

After April 1, applicants may have to file more reports and put in more scientific data.

Allens Arthur Robinson summarised the effects of amendments to the Patents Act as follows:

  • Making it harder to satisfy the tests of novelty and obviousness (both of which must be established in order for a patent to be granted).
  • Reversing the burden of proof so that an applicant must demonstrate to the Patent Office that its application satisfies the requirements of novelty and obviousness.
  • Introducing a more stringent duty of disclosure owed by applicants.
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