The Australian government has released its response to the Productivity Commission’s Inquiry into Intellectual Property. The initial report included a number of restrictive patent provisions which the government has agreed to accept.
Firstly, the government has adopted the recommendation to abolish the innovation patent system. The innovation patent was introduced with the intent, similar to the German utility model system, to provide a reduced form of protection. However, it has been utilised in unintended ways by patentee litigants to obtain far-reaching protection and effective advantages during litigation. Rather than seek to modify the innovation patent, the government will seek to abolish it altogether. As these provisions are unlikely to operate retrospectively, patentees should consider filing innovation patents before the changes are introduced.
Further, the government has agreed to incorporate a potentially hazardous objects clause into the Patents Act 1990, which fails to acknowledge a core purpose of the patent system, namely to encourage inventors to come forward with the disclosure of their inventions in return for a limited monopoly. Rather, the Productivity Commission’s suggested objects clause is more concerned with the Australian social benefits of patents. Unfortunately, any objects clause is likely to cause litigants extra costs in the courts as another hurdle to overcome.
The government has also accepted the Productivity Commission’s statements to again revise the definition of obviousness to the highest standard it could find, making it more difficult to obtain patent protection. While the legislation and Patent Office has moved towards the European standard in recent years, the Commission appears to be seeking an even higher standard than that required in Europe. Given the Productivity Commission was not made up of practitioners experienced in global obviousness standards, and their artificial operation, it is likely that patentees will again be forced into complex legal argument as to the details of the new standard.
The government has also accepted the Productivity Commission’s suggestions that technical features of a claim should be identified. Of course, the definition of technical will no doubt be vague and indefinite.
Overall, it is disappointing that the government has adopted proposals that seek to stifle the patent system. Patentees should move quickly before the legislation is introduced.
This article first appeared in Managing Intellectual Property magazine, October 2017 issue.