Australia: Patents Office introducing amendments to Stifle Patents

IP Australia is proceeding at pace with implementing the Government's response to the Productivity Commission's Report to severely curtail the rights of patent holders.

The proposed legislation and implementation is directed at the introduction of a number of problematic changes:

1) The abolition of the Innovation Patent system. The Innovation Patent system included a lower level inventiveness threshold similar to the Utility Model System of Germany, China and other countries. Allowing for lower inventiveness patents was deemed undesirable by the Productivity Commission and they recommended abolition. It is now important for applicants to seriously consider filing innovation patents before the repeal legislation is enacted.

2) Raising the inventive step requirements, somewhere in excess of the test of the European Patent Office, as a further restriction on grant. This is directed at increasing the hurdle requirement for grant.

3) Requiring applicants to disclose the "technical features" of their invention. This is an attempt to codify in legislation the European precedent of technical features. No doubt this will cause an excessive extra layer of unnecessary work for applicants.

4) Introducing an objects clause to the Patents Act 1990. Whilst the proposed clause is ephemeral, the likely subsequent discussion by patent litigants will increase the burden of litigation.

5) Making it easier to invoke the Crown Use provisions or Compulsory Licensing provisions. Again, restricting the rights of patent holders to fully exploit their patented inventions.

Whilst the Patents Office is conducting some public consultation, it is highly likely the Office will proceed with each of the above proposals.

Peter Treloar

Shelston IP
Level 21, 60 Margaret Street
Sydney NSW 2000, Australia
Tel: +61 2 9777 1111
Fax: +61 2 9241 4666
email@shelstonip.com
www.shelstonip.com

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