AusBiotech comments on objects clause and inventive step


AusBiotech, informed by its IP Advisory Panel, has made submissions on the IP Australia consultations on amending the inventive step for patent claims and introducing an objects clause.

IP Australia held the public consultations in preparation for the proposed implementation of the Government’s response to the Productivity Commission’s (PC) 2016 report on Australia’s IP arrangements.

AusBiotech says in its submission that it would like to see the current arrangements for the inventive step given time to settle and be assessed before further change is considered.  The ‘Raising the Bar’ legislation was and still is considered sound and the recommendation of the PC was made such a short time after the legislation had been enacted that it was too soon to assess its impact – let alone make disruptive and premature change.

The purpose of the proposed objects clause would be to provide additional clarity and guidance on the purpose of legislation, assists the courts in interpreting the legislation, and can be used to resolve uncertainty and ambiguity.

The consultation paper on an objects clause discussed two options for the precise wording of an objects clause to set out the purpose of the patents legislation.

AusBiotech said in its submission that the Industry is not keen on Option A nor Option B overall, and would prefer to see no objects clause or if one is considered necessary, an objects clause that is much more specific.

AusBiotech holds the view that neither of the options proposed for an objects clause are workable and a suitable option should be more specific. The purpose of a Patents Act is not to benefit society in some nebulous fashion, it is to benefit society by helping innovators, and people who invest in innovation, to be motivated to do so – and by that mechanism, to bring new products and services to the market that will benefit society.

The legislative amendments relating to these issues expected to be included in a Bill for introduction to Parliament in 2018.

Implementation of other measures – such as phasing out of the innovation patent system, the plant breeder’s rights recommendation and the majority of the trade mark recommendations - covered by the Government’s response to the PC report will be consulted on separately.

The final submissions can be found online.