Patents

A patent is defined as the exclusive right to use and deal with a registered invention.
Only the owner or a licensed party can exploit the patent.
Patents typically last for a duration of 10 or 20 years.

The primary purpose of patent rights is to encourage technical innovation.
Without legal protection, companies are generally unwilling to invest time, effort, and money into research and development.

The governing laws related to patents include:
- The Patent Act 1992
- The Patent Rules 1992 (for administration)

A patent is an invention in all fields of technology which must satisfy the following criteria:
1. Susceptible of industrial application (useful)
2. New
3. Involves an inventive step (is non-obvious)

There is no explicit definition of ‘invention’ in the 1992 Act.
Sections 11-14 define critical aspects of inventions such as:
- Novelty
- Inventive Step
- Industrial Application
Case Example: Biogen Inc. v. Medeva plc (Times LR 1 Nov 1996) discusses a genetic engineering patent concerning a hepatitis B virus vaccine.
Historical Example: The Wright Brothers' heavier-than-air flight demonstrates the need to avoid stifling further research and competition by allowing early inventors to monopolize every method of achieving desirable goals.

An invention is considered new when it does not form part of the state of the art.
The state of the art includes any information disclosed to the public prior to the application filing (as per s.11 of the 1992 Act).
Such publication must provide a clear description of implementing the claimed invention.
Case Example: Memcor Australia Pty v. Norit Technologic BV (2003), highlights the necessity of a single publication to establish novelty, not a compilation from series of publications.
Legal Precedent: General Tire and Rubber Co. v. Firestone Tire & Rubber Co. [1975] 1 WLR 819 states that prior use does not invalidate novelty unless it results in a public release equivalent to publication.

A previously filed patent application is deemed a publication.
The patent controller examines relevant literature for prior publications.
Disclosure of an invention is disregarded if:
- Occurred within six months prior to the patent filing and resulted from unlawful information acquisition or disclosure at an exhibition (according to s.12 of the 1992 Act).
Case Example: Quantel Ltd v. Spaceward Microsystems Ltd (1990) asserts that prototype demonstrations without public access do not constitute disclosure due to lack of visibility and lack of detailed engineering descriptions.

Concern arises when an inventor conceives a variant of an existing patent. Questions include whether the new version is sufficiently different.
Legal Precedents:
- Pirrie v. York Street Flax Spinning Co. [1894] 1 IR 417 states that a practical and useful patent is not invalidated by the mere existence of an earlier, less practical patent.
- Rawls v. American Tyre Machinery Inc [1960] IR 11.
- Wavin Pipes Ltd v. Hepworth Iron Co. [1982] FSR 32 illustrates a case regarding windsurfing boards, where earlier informal designs anticipated the invention.

An invention fulfills the inventive step requirement if it is not obvious to a person skilled in the art, considering the state of the art (s.13).
Questions regarding inventive steps arise once novelty is established.
Case Discussion: The Rawls case raises complexities in distinguishing inventive ingenuity from mere improvements.
Distinctions regarding inventive steps include:
- Addition of a new idea to existing knowledge.
- Finding a solution to a problem that was not previously apparent.
- Solving a specific problem obstructing a goal.
Case Framework: In Biogen’s Inc v. Medeva plc, a four-stage inquiry is carried out by the court:
1. Identify the inventive concept.
2. Assume the perspective of a typical skilled but unimaginative addressee of the art.
3. Identify differences.
4. Determine whether the differences make the invention obvious or demonstrate an inventive step.

An invention is considered susceptible of industrial application if it can be made or used in any industry, including agriculture (s.14).
It must meet the requirement of having some useful purpose.
Case Example: Chiron Crop v. Murex Diagnostics Ltd. [1996] FSR 153 discusses these principles in detail.

According to Ss. 9(2)-(4) and 10, the following are not considered inventions:

A patent will not be granted if its publication or exploitation contravenes public order or morality.
Case Example: Harvard/Onco-Mouse [1991]: Involving a genetically engineered mouse useful in cancer research. The EPO’s 2004 decision weighed the suffering of the Oncomouse against potential medical benefits, concluding the patent was valid.
Considered utilitarian perspectives on morality concerning the balance between animal suffering and human health benefits.
- While the Oncomouse was found beneficial for research, its cruelty was deemed acceptable due to the potential for medical advancements.
Case Example: The Upjohn Mouse demonstrates a contrasting outcome using a similar moral analysis. Here, the EPO ruled against the patent, stating that the suffering of the modified mice outweighed the potential benefits of treating baldness.