-- JonathanMo - 14 Sep 2015

Why do we have patent protection?

As with the other main areas of intellectual property, Australia's patent protection framework essentially encompasses its international obligations under the WTO's TRIPS Agreement. Article 27 of TRIPS requires member states to make patents available for any invention, whether for a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. It also requires that patent rights be enjoyable without discrimination as to the place of invention, or whether products are imported or locally produced. Three exceptions are permitted to this basic rule on patentability, namely:

• Inventions contrary to ordre public or morality, including inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment
• Diagnostic, therapeutic and surgical methods for the treatment of humans or animals
• Plants and animals other than micro-organisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, any member excluding plant varieties from protection under patent provisions must provide an effective sui generis system of protection.

The exclusive rights that must be conferred by a product patent are those of making, using, offering for sale, selling, and importing for these purposes, while process patent protection must extend rights not only over use of the process but also over products obtained directly by the process. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts. The term of protection available shall extend for a period of 20 years from the filing date.

Under the recent US-Australia Free Trade Agreement, Australia has also undertaken to extend its patent protection obligations beyond those required by TRIPS, particularly in respect of limiting the range of inventions for which protection could not be providing, and enhancing the degree of protection and exclusivity in respect of pharmaceutical and agro-chemical products and processes.