Australia

australia

There was a public consultation held on what should be patentable (patentable subject matter) from September to November 2009, the Australian Government’s Advisory Council on Intellectual Property (ACIP). An analysis is at Australian consultation responses 2009.

2009 calls for comment

In March, June, and August of 2008, IP Australia (the patent office) published various proposals and requests for comment about changing the patent system.

This indicates that there will soon be proposals to change patent law in Australia, this is an opportunity to exclude software patents.

At the end of 2009, there was a consultation on patentable subject matter, see Australian consultation responses 2009.

Types of patent in Australia

In Australia, there are two types of patent. There are normal patents, and "innovation patents". The latter are minimally examined (which lead to someone getting a patent on the wheel), but these are not the normal, main category of patents.

Legislation

• Patent legislation: Australian Patents Act 1990
• Patentable subject matter: SECT 18, Patentable inventions, which says a patent applications can be approved if it:

is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies;

Australian patent literature says the date of this statute is uncertain, but it's either 1623 or 1624. I couldn't find this statute on any Australian website, but here is the English statute of the same name and year:

• English Statute of Monopolies of 1623

Section 6 of the English statute indeed mentions manner of manufacture, but it doesn't give much information on what this means:

6 (a ). Provided also, that any declaration before mentioned shall not extend to any letters patents (b ) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c ) to the true and first inventor (d ) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e ), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f ): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g ).

How the patent office interprets this

The Australian patent office, in a document about schemes and plans, says that this means patents can be granted for schemes or plans "there is a means for putting the scheme or plan into effect." Two examples are given:

• A method of analysing business performance by operating a computer system to set specified parameters and thresholds in accordance with preselected criteria and to compare business performance against the parameters and thresholds.
• A method of raising funds by seeking sponsors to donate products, and programming a computerised random number generator to operate in a specified way to conduct a raffle of those products.

Another document from the patent office says:

A patent may be granted for a device or machine, a substance, a process or computer hardware and software, and even some business methods—in short, almost anything commercially useful. For a patent to be granted an invention must [...] be a manner of manufacture. A patent may be granted only for a tangible invention. No matter how ingenious or unusual they may be, you cannot patent artistic creations, mathematical models, theories, ideas or purely mental processes;

Patent office practice

The Australian patent office is: IP Australia

According to IP Australia, the criteria for eligibility include: "Your invention must ... be a 'manner of manufacture'. It includes any device, substance, method or process, but it excludes artistic creations, mathematical methods, plans, schemes or other purely mental processes;"

See also: Representative of IPAustralia describing the situation with software patents

According to the Australian legal website iLaw, software ideas are patentable if they have a "commercially useful effect".

Case law

In 1991, the patent commissioner rejected a software patent application on the grounds that it was mathematics. On December 13 1991, Federal Court judge Burchett disagreed and said this patent was indeed valid.

In 1992, a regional court upheld an IBM patent on "rendering curved images on computer displays". This decision was upheld by a federal court in 1994.

The UK 2006 ruling on Aerotel v. Telco mentions: "See Grant v Commissioner of Patents [2006] FCAFC 120m July 17th 2006 where the Federal Court of Appeal refused a patent for a method of protecting assets from bankruptcy involving the setting up of a trust, a gift to the trust, and a loan back with the trustee taking a charge on the loan."

External links

• http://www.ipaustralia.gov.au - Australia's patent office
• Comments on Australian patent law from New Zealand researcher Joel Wiramu Pauling
• History of software patenting in Australia - only the abstract is available but it's interesting
• The Australian government's "Innovation Agenda to 2020", including "Venturous Australia"
• AIPLA: A US organisation of patent lawyers gives comments on patents in Australia

Possibly related links for review

• http://www.austlii.edu.au/au/legis/cth/consol_act/pa1990109/
• http://www.austlii.edu.au/au/legis/cth/consol_act/papa2000400/
• http://weatherall.blogspot.com/
• http://www.lawfont.com/category/ip/patent/
• http://www.efa.org.au/Publish/ipfta-paper.html#patent
• http://www.efa.org.au/ip/