The policy reasoning behind the patent regime is one of a so-called bargain between the inventor and the public.
That bargain is that the public will give the inventor a time limited monopoly over his invention, thereby restricting free access to his valuable invention by the public, in exchange for the inventor adequately disclosing his invention to the public and promising to utilise it. The specific terms of the bargain, as outlined by the Patents Act 1990 (Cth), are that the monopoly granted is for 20 years, the inventor must adequately disclose the invention, the inventor must specify precisely what the invention claims, and those claims must find support in the information provided by the specification. The rights then granted to the inventor in return are the exclusive right to use his invention.
However, there was a growing concern that the patent system was failing to express this bargain adequately.
The recent reforms of the Raising the Bar legislation have altered the terms of the bargain established by the patent regime and have strengthened the rights provided to the public by placing greater onus on the inventor. Notably, the reforms increased the threshold of inventiveness required for protection and therefore ensuring that only a higher quality patents will be allowed to claim monopoly. Greater onus is now also put on the inventor to not just to describe the invention but to do so “in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art”, and in a similar vein, the claims of the invention must now be ‘supported by the specification’ rather than “fairly based” as previously.
It is anticipated that these reforms will enable a higher quality of patents to be granted and thus better fulfilling the policy of patent law.
Patents Act 1990 (Cth)
Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth)
R Reynolds et al, Intellectual Property: Text and Essential Cases. 4th edition, Federation Press 2012
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