Description:
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
Description:
Two basic legal models have evolved to tackle the problem of unlawful P2P distribution: safe harbour and graduated response. This article will discuss the two models, with a focus on the American safe harbour regime and the French graduated response regime. Also considered is the open question of what will occur in Australia in the aftermath of the High Court's denial of ISP liability in Roadshow Films v iiNet.
Description:
In 2009 the House of Lords reconsidered Biogen sufficiency – a rule in UK patent law that confers jurisdiction upon courts to revoke unduly broad patent claims. Here a quite separate reconsideration of the rule is undertaken, with a primary focus upon its provenance and its relationship to the EPC. It will be shown that Biogen sufficiency has a basis in the EPC and that this basis both: (i) inscribed a modest line of UK sufficiency authorities, and (ii) had a material, albeit background, influence upon the acceptance of the rule in Biogen v Medeva. Following this examination of its origins, a critique of the rule will be offered with a suggestion that its conceptual foundation should be reconsidered.