Publications
Intellectual Property Laws Amendment (Raising the Bar) Bill - Update
| Date: | 27 January 2012 |
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| Author: | Chris 0wens |
As outlined last year, the "Raising the Bar Bill" was scheduled to pass into law in late 2011. The Bill is intended to raise the standards against which IP rights are assessed in Australia.
The debate on the bill was adjourned following its second reading, and as the Australian Senate next meets in February 2012, it is unlikely that the bill will be passed before the middle of 2012. This will most likely push the commencement date for the new provisions out to at least the end of 2012.
At FB Rice, we will monitor all developments and update you as soon as the Bill is passed. In the meantime, here is a brief re-cap on the key provisions.
Inventive step
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The territorial limitation in respect of common general knowledge will be removed.
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The requirement for a prior art reference to be "information that a skilled person…could, … be reasonably expected to have ascertained, understood, regarded as relevant…" has been removed.
Utility
- The complete specification should disclose a "specific, substantial and credible use" for the invention.
Sufficiency
- Provisional specifications will be required to have a level of disclosure almost the same as for a complete specification, but they need not disclose the best method of performing the invention.
- The complete specification must "disclose the invention in a manner which is clear enough and complete enough for an invention to be performed by a person skilled in the relevant art. The subject matter of a claim should be enabled across its "whole width". The best method of performance of the invention must still be disclosed.
Fair basis
- The current fair basis requirement is to be replaced with a support requirement:
- There must be basis in the description for each claim; and
- The scope of the claims must not be broader than is justified by the extent of the description, drawings and contribution to the art.
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The support requirement will also apply in assessment of the priority entitlement.
Regulatory exemption
- Use of a patented invention for obtaining regulatory approval will be exempt from infringement.
Experimental use exemption
- A broad experimental use exemption will be introduced.
Deadline for filing divisional applications
- The deadline for filing divisional applications or for converting existing applications to divisional status will be restricted to 3 months after publication of acceptance.
Privilege
- Privilege afforded to clients of patent and trade marks attorneys will be extended to the clients of foreign patent and trade mark attorneys, and will extend to communications with third parties.
Entitlement
- Under the new provisions a patent will not be considered invalid merely because it was granted to the wrong person.
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