17 Apr 2012

Patents to be harder to get in Australia

Submitted by Troy Rollo

On 20 March 2012 the Australian Parliament passed the Intellectual Property Laws Amendment (Raising the Bar) Bill 2012. This Bill makes a number of amendments to intellectual property laws, but most importantly increases the level of inventiveness required to justify the patent, and increases the standard of description required in the patent itself.

The key amendments are that:

  1. The "common general knowledge" relevant for determining whether invention would be obvious to somebody skilled in the art will no longer be restricted to the common general knowledge in the patent area. This should limit the opportunities for taking something that is well known in one field, and patenting its application to another field;
  2. Other information that is relied on to show obviousness will no longer need to be information that the skilled person could "be reasonably expected to have ascertained, understood, [and] regarded as relevant";
  3. The invention will be taken not to be useful unless the specification discloses a specific, substantial and credible use for the invention that can be appreciated by a person skilled in the relevant art;
  4. The specification will be required to disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a 20 person skilled in the relevant art.

That is a start, but a lot more would need to be changed to stop the worst abuses of the patent system. It still leaves a lot of scope for "inventions" that lack any degree of inventiveness to be accepted by the patent office and upheld by courts that lack the skills to properly evaluate inventiveness. When reading the cases, it seems that the "ordinary person skilled in the art" used to test patents is in fact a "very ordinary person with very limited skill in the art".