Following in the footsteps of many other patent offices around the world, Australia has put in place an amendment to the Patents Act 1990 that will come into force on 15 April 2013. In a perceived effort to ‘raise the bar’ of patentability – a catchy but meaningless phrase coined by the European Patent Office a few years ago – a number of new standards have been introduced into the statute. The new measures include a more rigorous approach to examination of inventive step that increases the scope for IPO Examiners to consider obviousness from the perspective of a non-Australian skilled person. There is also a significant reduction in the term for ensuring the application proceeds to acceptance, from 21 months from issuance of the first Examination Report down to a fleeting12 months. The expected effect of these measures is to make it harder to get the broad scope of patent protection that is currently expected by many applicants in Australia.
The advice issuing from many Australian patent attorney firms is for applicants who have pending applications in Australia to request examination before 15 April 2013 in order to benefit from the current more lenient standards. Presumably, those with pending International patent applications could also enter the Australian National Phase early as well if Australia is seen as a key market.
It has been interesting to watch how Australia has grappled with the problem of how to use intellectual property law as a stimulus for home grown creativity and innovation. The successful mining and commodities markets have insulated the Australian economy from the worst aspects of the global economic downturn and yet the most adept, and some might say rapacious, users of their IP system are foreign corporations who perceive the currently lax IP criteria as an easy and cheap way to secure broad monopolies in the growing Southeast Asia/Pacific region. Clearly the pendulum has swung the other way and the current amendment will bring Australia’s patent laws closer to those in Europe, the US, China and Japan.