Australian Patents and Experimental Use Law
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Patents are sometimes a confusing thing. While they are needed with most businesses and companies, there is often confusion about what they are, when you need one and how to use them properly and successfully. Many people don’t know how to register a patent or what the laws are regarding getting a patent. Here’s what you need to know about Australian patents and experimental use.
Patents in Australia are regulated by the ACIP (Advisory Council on Intellectual Property). This independent body was established to help provide a policy and advice to the federal government on issues such as patents and experimental use. Their job is based on intellectual property rights. The Parliamentary Secretary to the Minister for Industry, Resources and Tourism has also asked them to perform certain tasks.
Because the law is sometimes confusing regarding intellectual property, it is important that organizations exist to help create the laws and guidelines as well as enforce them when needed. The ACIP has different jobs, one of which is to examine the types of patents which are inhibiting research in Australia and to examine patents that develop within the country.
They also deal with issues of experimental use and how researchers can effectively use the patent system for commercialization and other needs.
Australian Experimental Use
So that brings us to experimental use and how it is applied by law in Australia. Australia’s Patents Act 1990 covers the laws and regulations of patents in the country. However, it does not specifically name an exemption to infringement for the purpose of experimental use.
Here are the reasons when experimental use of a patent should be allowable:
- Testing the validity of the patent
- To reduce the costs and expense of academic instructional experimentation
- To gain knowledge in the field which is not included in the patent specification
- To assist in research and development of future patents and similar inventions
In these cases, experimental use of a patent is not considered to be infringing on the patent according to the patent laws of Australia. However, there are still some arguments and often debate over this and when it is considered okay to use a patent experimentally.
Some argue that this exemption is already implied and understood based on the patent system already in use in Australia. This allows the test of patents as a way to indirectly benefit the public and implies that it is a requirement of the patentee that made the discovery.
Still, you have others that disagree and feel that experimental use should only be allowed by the patentee. Otherwise, the following complications could arise:
- It could reduce the economic value of the patented invention
- Give competitors a loophole to use that patent
- Make it hard to determine infringement when the patent is used without authorization
When it comes to biotechnology and experimental use, special issues arise. It is believed that if experimental use of patents is not allowed, then this would discourage others from experimenting deeper into that field. This would have two effects. On the upside it would encourage patentees to experiment and make improvements in many different areas, instead of focusing on the same thing. However, on the downside it would reduce the advancement in areas that have already been patented. This could slow down technology and prevent a lot of exciting discoveries from ever being made.
Options Preferred By the ACIP
Many recommendations have been made to the ACIP concerning the matter of Australian patents and experimental use. Out of all of the consultation and submissions the following are the options preferred by the ACIP.
One option is to not make any changes in the current Australian patent laws. This will not change the current status but considering there is no evidence to prove that the confusion surrounding research and development is really affecting it enough to justify the expense of making changes, they feel that nothing really needs to be done.
Another option is to make a modification to the law that would eliminate experimental use from the “legal definition of exploit” in relation to the patent law. It is believed that this would indirectly make experimental use exempt to infringement based on the fact that it is based on the patentees rights.
Amend the Australian patents Act to include a clear exemption that explains the permitted experimental use of patents is another option. The amendments would establish that as long as the infringing act constitutes fair experimentation on a patent, then it would not be considered infringement. This option provides both examples that can help clear up the confusion and it allows for flexibility when it comes to interpreting the general principles of the act, making it the most preferred option of the ACIP.
While many people may still be confused by the Australian patents and experimental use act, measures are being taken by the ACIP to make things clearer and easier to understand.
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