- Title
- Does a requirement that the description fully support a product claim raise Australia from "Mechanistic and impoverished" patent rules
- Creator
- Brennan, David
- Date
- 2012
- Type
- Text; Journal article
- Identifier
- http://researchonline.federation.edu.au/vital/access/HandleResolver/1959.17/103937
- Identifier
- vital:10984
- Identifier
- ISSN:
- Abstract
- The Intellectual Property (Raising the Bar) Act 2012 (Cth) (the ‘Raising the Bar reforms’) signals a Parliamentary intention to reform in Australian patent law two related grounds of validity; the fair basis of claims in a written description and the adequacy of the written description of the invention as claimed. 1. The reform is variously described in government papers as both raising the standard of validity and harmonising Australian patent validity grounds with their UK counterparts. In this it implies a clear dissatisfaction with the approach taken by the Australian High Court in the two leading cases on point concerning product claims, and a commensurate attraction to a principle in UK law known as Biogen suffi ciency. 2.Fair basis and adequacy of description, and the relationship between them, taken together is quite a diffi cult area of patent law. In part this is because the concepts underpinning the law are intrinsically complex. Also, this law has traditionally served distinct roles in the patents system: (i) facilitating the proper operation of the provisional application, when used, in preserving a priority date earlier than its related complete application; (ii) facilitating the proper operation of priority date rules under the Paris Convention. 3.When relied upon; and (iii) as an internal ground of validity for a complete application or granted patent in all cases. 4. Earlier scholarship of McBratney has explored in some depth the history underpinning what were distinct legal approaches in these three settings. 5. Rightly or wrongly, the law in each three cases has become a largely harmonised set of principles and this essay does not question that long-standing development, which can be traced
- Relation
- Monash University Law Review Vol. 38, no. 1 (2012), p.
- Rights
- This metadata is freely available under a CCO license
- Subject
- 1801 Law
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