Raising the Bar

RAISING THE BAR

Patents and intellectual property

New laws that came into force from 15 April make it tougher to successfully patent an invention.

The laws are designed to more closely align the Australian system with international standards and, in the process, raise the bar for the successful patenting of inventions in Australia.

In particular, there is a shift towards examining the practical applications of the invention by specialists in the field. From 15 April, budding inventors will need to work harder to provide enough information in their specifications for an expert in the appropriate area to understand, as well as perform the actions to which the invention could potentially be put.

Common general knowledge outside of Australia is also included as part of the test for inventiveness for the first time and inventors now need to show that the claims they make are adequately supported by the documentation they include with their application.

The new laws significantly bolster the principle of free access to patented inventions for regulatory approvals and research. This means actions that would otherwise be infringements on patent are exempt when performed for the purpose of obtaining approval required by Australian law. For example, if a generic drug company wishes to make preparations for sale of its generic equivalent to a patented drug by seeking regulatory approval before the patented drug comes off patent, it may do so. It may also produce quantities of its product and run a trial or submit its product for testing in order to gain regulatory approval.

For those seeking to block approval of a rival’s patent there are new time limits to be considered.

Commonly used reasons for extensions of time such as a witness or attorney being unavailable will no longer be permitted.

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