Patents & Inventions Law & Lawyers

A patent is a right granted for any device, substance, method or process which is new, inventive and useful.

A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. This is not automatic-you must apply for a patent to obtain exclusive rights to exploit your invention.

There are two types of patents in Australia;

  • a standard patent gives long-term protection and control over an invention for up to 20 years.
  • an innovation patent is a relatively fast, inexpensive protection option, lasting a maximum of 8 years. The innovation patent replaced the petty patent on 24 May 2001.

Patents give effective protection if you have invented new technology that will lead to a product, composition or process with significant long-term commercial gain.

In return, patent applicants must share their know-how by providing a full description of how their invention works. This information becomes public and can provide the basis for further research by others.

Australian patents are administered by the Patent Office of IP Australia, a Federal Government Organisation.

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See also our Intellectual Property Law & Lawyers Section by clicking here.

An outline of the patent system

Historical origins

Patents are the oldest form of intellectual property, but their historical origins are obscure. In England, in the fifteenth century, the monarch began to grant monopoly rights as a means of attracting new industries from continental Europe, but these were more in the nature of a royal licence to avoid the effects of guild regulations than a true grant of exclusive rights to carry on an activity.[4] It was only in the following century that patents began to be granted in respect of inventions, and the patent system was put on a statutory basis for the first time in the seventeenth century with the passage of the Statute of Monopolies 1623 (Statute of Monopolies). Despite its age, this English statute continues to have relevance to Australian patent law today.

As it first developed, the English patent was a slow, costly and cumbersome procedure for encouraging and protecting inventions. The procedure was described in derisory terms by Charles Dickens in a short story published in 1850, ‘A Poor Man’s Tale of a Patent’. Over the years there were many piecemeal reforms to the system, but it was the Patents Act 1883 (UK) that provided the basis of modern patent law.

Patent legislation in Australia has always been closely modelled on that of the United Kingdom. Prior to Federation, each of the Australian colonies had its own legislation based on the Patents Act 1883 (UK). In 1901, the Australian Constitution gave the newly established Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of invention and designs, and trade marks’.In 1903, this power was exercised with the enactment of the Patents Act 1903 (Cth).

As in the United Kingdom, there have been many amendments to Australian patent legislation in response to formal commissions of inquiry. The 1903 Act was re-enacted with substantial changes in 1952 and again in 1990. The Patents Act 1990 (Cth) (Patents Act) provides the current legislative framework governing the grant and administration of patents in Australia.

See also our Intellectual Property Law & Lawyers Section by clicking here.

Functions of patents

Patent law has been described as a ‘stressful if fertile union’ between certain contradictory principles: self-interest and the common good; monopoly rights and liberty; the ownership of ideas and public disclosure of knowledge. This union results from the dual goals of patent law—to benefit society by encouraging the provision of new and useful goods, and to encourage and reward inventiveness.

These goals are achieved by providing incentives for innovation and knowledge sharing by granting monopoly rights, for a limited period, to exploit a new product or process. Monopoly rights encourage investment by providing an opportunity to recoup the financial outlays involved in developing an invention. They also reward the inventor by allowing a return to be made on the time and resources expended on research and development.

The limited duration of the monopoly means, however, that the patented invention eventually will be available for free and unrestricted use when the patent term expires: the compromise is thus ‘a way of securing future benefits for the common good’.In addition, patents promote knowledge sharing during the term of the patent by requiring the patent holder to place the details of the invention in the public domain. As one United States judge has stated:

The purpose of the patent system is not only to provide a financial incentive to create new knowledge and bring it to public benefit through new products; it also serves to add to the body of published scientific/technological knowledge. The requirement of disclosure of the details of patented inventions facilitates further knowledge and understanding of what was done by the patentee, and may lead to further technologic advance.

Exploitation of patents

A patent gives the inventor the right to stop others from exploiting the invention for a limited period. However, a patent does not grant an absolute right to exploit an invention in any way the inventor may choose. A patent holder may have to satisfy regulatory requirements in order to exploit the patented product or process; for example, a patented pharmaceutical compound may need approval under the Therapeutic Goods Act 1989 (Cth) before it can be marketed lawfully and sold as a treatment for a particular condition. Similarly, the use of a patented invention is subject to the general law; for example, the components required to manufacture a car may be the subject of many patents, but the car must still be used in accordance with motor traffic laws.

A patent holder is not obliged to exploit a patented invention, but the failure to do so may have implications for the patent holder’s rights. For example, the patent could be subjected to compulsory licensing, or it could be used or acquired by the Crown under relevant provisions of the Patents Act. A patent holder may authorise others to exploit the patent by granting a licence on agreed terms. This may be on an exclusive, sole or non-exclusive basis, and almost certainly will require the licensee to pay royalties or other fees to the patent holder.

It is important to note that while patents are a form of intellectual property, they do not confer ownership in the physical material described in the claims for a patented product or process. Thus, a patent over a genetic sequence does not amount to ownership of the sequence itself.

Criteria for patentability

Although there is considerable variance in detail from one jurisdiction to another, most countries apply similar tests for patentability: an invention must be novel (that is, new), must involve an inventive step, and must have a useful application. In addition, the description of an invention in a patent application must be sufficient to allow a person skilled in the relevant art to create the invention independently.

Briefly, the Patents Act provides that an invention will be patentable if it is a ‘manner of manufacture’ within the meaning of s 6 of the Statute of Monopolies; is novel; involves an inventive or innovative step; is useful; and has not been used secretly within Australia prior to filing the patent application.

Certain inventions are expressly excluded from patentability. Australia has relatively few express exclusions, but they include inventions involving ‘human beings, and the biological processes for their generation’, as well as inventions the use of which would be contrary to law. Other jurisdictions recognise a broader range of exceptions, including inventions involving diagnostic, therapeutic and surgical methods of treatment of humans and animals; and inventions whose commercial exploitation would be contrary to morality or public order.

Australian Patent Law

Australian patent law operates within an international legal framework, which shapes certain procedural and substantive aspects of the patent system.

Australia has enacted legislation that regulates patenting practices within the Australian ‘patent area’ with respect to inventions involving any type of technology. The procedures for obtaining a gene patent in Australia are, broadly speaking, the same as those that apply to patents claiming any other type of technology.

Patents Legislation

Section 51(xviii) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of inventions and designs, and trade marks’. Pursuant to this power, the Parliament has enacted the Patents Act 1990 (Cth) (Patents Act) and the Patents Regulations 1991 (Cth) (Patents Regulations).

Patent protection in most countries is available for inventions that are new, involve an inventive step, and have a useful application.

In Australia, the Patents Act provides that an invention is patentable if it:

  • is a ‘manner of manufacture’—that is, the invention is appropriate subject matter for patent protection;
  • is novel;
  • involves an inventive or innovative step;
  • is useful; and
  • has not been used secretly within Australia before the priority date of the patent application.


Administration

The Australian patent system is administered by the Patent Office of IP Australia. IP Australia is a division of the Department of Industry, Tourism and Resources, but operates independently and reports directly to the Minister.

Under the Patents Act, the Commissioner of Patents has the power to grant a patent upon an application being filed with and examined by the Patent Office. IP Australia has developed the Patent Manual of Practice and Procedure (the Manual) to assist Australian patent examiners in applying the Patents Act and Patents Regulations.

State and federal courts and the Administrative Appeals Tribunal (AAT) also have a role in administering the patent system. Decisions of the Commissioner of Patents may be subject to review by the AAT or the Federal Court of Australia. The AAT may undertake merits review of the Commissioner’s decisions with respect to certain procedural matters prescribed by the Patents Act. A direct application may be made to the Federal Court for judicial review in relation to other decisions of the Commissioner; essentially those related to the grant of patents or matters closely allied to the grant (for example, amendments to patent specifications and revocations).

The Federal Court and state and territory Supreme Courts share original (first instance) jurisdiction over matters relating to the exploitation and enforcement of patent rights, including challenges to patent rights, infringement proceedings and compulsory licences. The AAT has no jurisdiction in relation to such issues.

Types of patents

Australian patent law recognises two principal types of patents:

(1) standard patents and

(2) innovation patents.

An applicant for a patent may elect to obtain protection for an invention under either system. Table A below outlines the key features of, and the difference in the scope of protection conferred by, standard and innovation patents.

Standard patents

A standard patent is the basic form of patent protection for inventions under Australian law and is consistent with the minimum requirements for patent protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). Unless otherwise indicated, references to an Australian patent and discussions of patent rights in this Report relate only to the standard patent system.

Innovation patents

The innovation patent is a ‘second tier’ of protection, which was introduced in 2001 to replace the petty patent system.  Innovation patents are intended to provide protection for ‘lower level’ inventions for which standard patent protection is not available and which are not covered by the designs legislation.

Patents of addition

The Patents Act also provides for the grant of a ‘patent of addition’ for an improvement in, or modification to, an invention claimed in a standard patent that has already been granted.[21] A patent of addition may be obtained only by the owner of the earlier patent, or a person authorised by the owner. The term of a patent of addition expires at the same time as that of the patent on the main invention.

Table A - Features of standard patents and innovation patents

Features

Standard patent

Innovation patent

 

Term

20 years (s 67)

Extension of up to 5 years   available for certain pharmaceutical patents (ss 70–79A)

8 years (s 68)

Number of claims

No   limit

Maximum of 5 claims   (s 40(2)(c))

 

Inventions excluded from   patentability, or excludable at the discretion of the Commissioner of Patents

Human beings and the biological   processes for their generation (s 18(2))

Inventions whose use would be   contrary to law (s 50(1)(a))

Inventions capable of application   as a food or medicine that are a mere admixture of known ingredients   (s 50(1)(b))

Same as for a standard patent, and

Plants and animals and the   biological processes for the generation of plants and animals (s 18(3),   (4))

Level of invention required

‘Inventive step’ over the prior   art (s 7(2)–(3), sch 1)

‘Innovative step’ over the prior   art (s 7(4)–(6), sch 1)

Review by Patent Office prior to   grant

Substantive review for compliance   with the requirements for patentability (ss 44–49)

Formalities check only; no   substantive review unless requested (ss 52, 120(1A))

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

Procedure for grant of a patent

Patent rights do not arise automatically. A patent can be obtained only by following the procedure set out in the Patents Act and Patents Regulations. An understanding of the procedure for obtaining a patent is important to understanding Australian patent law generally. The steps in obtaining an Australian patent are described below.

Filing an application

For a patent to be granted, an eligible person must file an application in the form prescribed by the Patent Office. Eligible persons are the inventor of the invention claimed in the application, or a person to whom the inventor has assigned his or her rights in the invention. A patent application must include a specification of the invention, which contains instructions adequate to enable a skilled person in the relevant area of technology to produce or perform the invention. The specification must also indicate the ‘claims’ that define the invention; that is, the scope of protection that the applicant is seeking.

Australian patent law recognises two types of patent applications—provisional and complete. Provisional and complete applications may be filed to obtain either a standard patent or an innovation patent.

A provisional application need only contain a description of the invention. Often, an inventor files a provisional application before all the details of an invention are known. The applicant then has 12 months to file a complete application.

A complete application must contain a full description of the invention, together with claims, and an abstract summarising the invention being disclosed. A complete application may be based on one or more provisional applications, and only those claims that are ‘fairly based’ on the relevant provisional application will be entitled to the priority date of the provisional application.

The ‘priority date’ of a patent claim is important in determining whether the requirements for patentability of an invention have been met. The requirements of novelty and inventive step are assessed against the prior art as it existed before the priority date. The priority date is typically the date on which a provisional application is filed in Australia, or the date on which an application is filed in another participating jurisdiction.

An applicant may also elect to file a complete application with the Patent Office under the Patent Cooperation Treaty (PCT). A PCT application designates all the jurisdictions that are parties to the PCT (including Australia), and secures an international priority date.

PCT applications that have entered the national phase (and will be processed as a complete application) are the main type of applications received by IP Australia. In 2002–03, 16,278 PCT applications selected Australia as one of the jurisdictions in which an applicant wished to obtain patent protection and entered the national phase in Australia. During the same period, 5,694 non-PCT applications for standard patents were filed with IP Australia.

Divisional applications

Each patent application may claim protection only for a single invention. If, following assessment of a patent application, a patent examiner finds that an applicant has claimed more than one invention in the application, the applicant may elect to file a ‘divisional application’—that is, a new application divided from the original or parent application. A divisional application allows an applicant to continue to benefit from the priority date of the original application.

Divisional applications may claim subject matter not contained in the original application so long as all the features of at least one of the claims were disclosed in the original application. There are no statutory limits on the number of divisional applications that may arise from a single complete application.

The Patents Act restricts the subject matter that may be claimed in a divisional application, depending on the time at which it is filed. However, a divisional application, once filed, is subject to the same procedural requirements, including examination, as any other complete patent application.

In its submissions to the Inquiry, IP Australia indicated that divisional applications are currently ‘open to abuse’. In practice, such abuse may occur only in a small number of cases. However, IP Australia suggested that patent applicants are able to make strategic use of divisional applications in order to delay determinations by the Patent Office as to the proper scope of patent claims, or as to whether a patent should be granted. IP Australia commented that the Patents Act allows an applicant to use a divisional application to obtain a de facto monopoly by extending the period within which to respond to an examiner’s adverse report. While this use of divisional applications may be legitimate in some circumstances, IP Australia suggested that it might be used tactically by an applicant in ‘newly developing areas of technology, such as genetics, where there is a question of [the] patentability of the subject matter’. Further, an applicant might avoid a decision in an opposition proceeding by withdrawing the opposed application and refiling it as a divisional application. To address these issues, IP Australia suggested that limitations could be imposed on the circumstances in which divisional applications are available.

However, the majority of submissions and consultations on this issue did not support imposing additional limitations either on the period within which a divisional application may be filed or on the subject matter that may be claimed in a divisional application. Submissions and consultations questioned whether divisional applications are being misused, and commented on the lack of evidence that divisional applications claiming genetic inventions present a special case.

Examination

Once an application has been filed with the Patent Office, a number of additional steps must be followed before a patent may be issued. An applicant must file a request that the Patent Office examine the application. Examination is not automatic and a request for examination must generally be filed within five years of the date of filing a complete specification. However, IP Australia’s standard practice is to direct applicants to file a request for examination, if no request has been received, at approximately 32 months from the priority date, although this period may vary according to IP Australia’s workload. An abbreviated examination may be requested if an Australian patent application is related to a patent that has already been granted by the patent office in a prescribed foreign jurisdiction.

The purpose of examination is to determine whether the invention meets the statutory requirements for patentability set out in the Patents Act. The Patent Office carries out searches of previously published documents—including scientific and patent literature (‘prior art information’)—to determine the prior art material relevant to the claimed invention. In addition, an applicant must disclose to the Patent Office the results of searches carried out by or on behalf of foreign patent offices in respect of the invention claimed in an Australian application, or in a corresponding patent application filed overseas. An examiner with expertise in the relevant area of technology then examines the application, taking into account the information contained in the results of these searches and any other prior art information.

Examination of a patent application typically involves an exchange between the examiner and the applicant about the appropriate scope of the specification and the claims in light of the relevant prior art. This process is known as ‘prosecution’ of a patent application.

Following receipt of a request for examination, an examiner will make an initial assessment of an application for a standard patent and either accept the application as filed or issue a ‘first report’ detailing the procedural and substantive grounds for objecting to the application. An applicant then has a period of 21 months to address the objections raised by the examiner. The examiner may issue further reports for each response by the applicant that does not satisfy the objections raised. An application for a standard patent will generally lapse if it is not in order for acceptance within 21 months after the date of the first report.

Acceptance, publication and sealing

The Commissioner of Patents must notify an applicant of the decision to accept or refuse a patent application, and must publish notice of the decision in the Official Journal of Patents (Official Journal). Formal refusal of an application is rare. More commonly, applications for standard patents lapse for failure to obtain acceptance within the prescribed 21 month period following a first report. The Official Journal also publishes notices of lapsed applications.
Publication of a notice of acceptance in the Official Journal should be distinguished from the publication of a complete specification for a standard patent. This typically occurs 18 months after the earliest priority date for the application, and is also advertised in the Official Journal. An application is confidential prior to publication of the complete specification, and only bibliographic details—such as the applicant’s name and title of the invention—are made available by the Patent Office.

A patent is granted when the Commissioner of Patents causes the patent to be sealed with the seal of the Patent Office. For a standard patent, this will occur within six months of the date of publication in the Official Journal of the notice of acceptance of the application, unless the application is opposed.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

International legal instruments

Australia is a party to a number of international legal instruments relating to intellectual property. The major international instruments that affect patent laws and practices in Australia are:

  • Paris Convention for the Protection of Industrial Property 1883 (Paris Convention);
  • Patent Cooperation Treaty 1970 (PCT);
  • Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977 (Budapest Treaty); and
  • Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement).

Australian domestic law has given effect to significant provisions of each of these instruments.

See also our Intellectual Property Law & Lawyers Section by clicking here.

 

Links to further resources - Patents & Inventions Law & Lawyers

 

Patents & Inventions Law & Lawyers News

Rights of a patent holder

The Patents Act provides that the grant of a patent confers upon a patent holder the exclusive right to exploit, or to authorise another person to exploit, an invention during the patent term. ‘Exploit’ is defined in the Act to include:

(a) where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire, or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b) where the invention is a method or process—use the method or process or do any act mentioned in (a) in respect of a product resulting from such use.

A patent does not, however, grant an absolute right to exploit an invention. A patent holder may have to satisfy other legal requirements in order to exploit the patented product or process. For example, a patented pharmaceutical compound may need to be approved under the Therapeutic Goods Act 1989 (Cth) before it can lawfully be marketed and sold as a treatment for a particular condition. In addition, a patent holder’s ability to exploit the invention may be subject to earlier patents not owned by the patent holder.

A patent holder may assign or license its patent rights to a third party. An assignment of a patent results in the transfer of all of the rights owned by the patent holder to a third party (the assignee).

A licence of a patent does not transfer ownership of any patent rights; rather, it establishes terms upon which a third party (the licensee) may exercise certain patent rights without such use constituting infringement.

A patent holder is not obliged to exploit an invention claimed in a patent at any time during the patent term, nor to license or assign its patent rights.

However, the failure to exploit the invention may encourage others to invoke the Crown use or compulsory licensing provisions in the Patents Act.

Patent rights remain subject to challenge even after the Commissioner of Patents accepts a patent application and after the patent is sealed. Section 20 of the Patents Act expressly states that nothing in the Act or in the PCT guarantees that a patent is valid.

Duration of patent protection

A standard patent generally has a term of 20 years, commencing on the date of the patent; an innovation patent has a term of 8 years. The term of a standard patent relating to ‘pharmaceutical substances’ may be extended in certain circumstances.

Art 33 of the TRIPS Agreement requires member States to provide patent protection for a term of not less than 20 years from the filing date. Article 27(1) requires member States to make patent protection available for all inventions, without discrimination as to the field of technology to which an invention relates. The Patents Act was amended in 1994 to extend the term of protection for a standard patent from 16 years to 20 years in order to bring Australian patent law into conformity with the TRIPS Agreement.

While the TRIPS Agreement provides some flexibility to member States in developing their own patent laws, the minimum term of patent protection is not subject to exceptions or qualifications. The TRIPS Agreement does, however, permit member States to require compliance with reasonable procedures and formalities as a condition of the acquisition or maintenance of intellectual property rights. Such procedures and formalities include the payment of fees for the filing and processing of a patent application, and for maintaining existing patent rights.

In addition, the Australia–United States Free Trade Agreement contains a provision that might affect the term of patent. Article 17.9.8 provides that, if there are unreasonable delays in a Party’s issuance of patents, that Party shall provide a means to adjust the term of the patent to compensate for the delay. If, in the future, there is evidence of unreasonable delay in the grant of Australian patents it may be necessary to amend the Patents Act to provide an extension of the patent term.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

See also our Intellectual Property Law & Lawyers Section by clicking here.

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What is Intellectual Property?

Tue, 20 Apr 2021 14:36:08 +0000

Many consider Isaac Newton the father of calculus, however, what they don’t know is that this topic was heavily contested by Gottfried Leibniz, who had published papers on the topic around the same time. Each claimed that the other had stolen his work, but no conclusion came of it as Leibniz died in 1716. This […]

The post What is Intellectual Property? appeared first on Patent Education Series.

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MPEP Q & A 221: What are the Three Types of Patent Documents Available as Prior Art …?

Tue, 13 Apr 2021 14:11:13 +0000

Question: AIA 35 U.S.C. 102(a)(2) sets forth three types of patent documents that are available as prior art as of the date they were effectively filed with respect to the subject matter relied upon in the document if they name another inventor. What are they? Answer: AIA 35 U.S.C. 102(a)(2) sets forth three types of […]

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MPEP Q & A 220: What are the Section 42.208 paragraph (c) Amendments?

Tue, 30 Mar 2021 14:10:54 +0000

Question: What was Section 42.208 paragraph (c) amended to in the supplement entitled: Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board? Answer: Section 42.208 is amended by revising paragraph (c) to read as follows: * * * * * (c) Sufficient grounds. Post-grant review shall not be instituted […]

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MPEP Q & A 219: When may the OPAP object to and require corrected drawings within a set time period?

Tue, 16 Mar 2021 14:10:39 +0000

Question: When may the OPAP object to and require corrected drawings within a set time period? Answer: The OPAP may object to and require corrected drawings within a set time period, if the drawings: have a line quality that is too light to be reproduced (weight of all lines and letters must be heavy enough […]

The post MPEP Q & A 219: When may the OPAP object to and require corrected drawings within a set time period? appeared first on Patent Education Series.

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MPEP Q & A 218: What is the issue of correlation about as related to matters of invitro/in vivo?

Tue, 02 Mar 2021 15:10:21 +0000

Question: What is the issue of correlation as related to matters of invitro/in vivo? Answer: The answer to this question can be found in chapter 2100 of the MPEP. This chapter covers Patentability. The answer is from the 9th Edition, Revision 08.2017. Depending on future changes to the MPEP, the question and answer may or […]

The post MPEP Q & A 218: What is the issue of correlation about as related to matters of invitro/in vivo? appeared first on Patent Education Series.

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MPEP Q & A 217: What are the Section 42.23 paragraph (b) Amendments?

Tue, 16 Feb 2021 15:09:59 +0000

Question: What was Section 42.23 paragraph (b) amended to in the supplement entitled: Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board? Answer: Section 42.23 is amended by revising paragraph (b) to read as follows: 42.23 Oppositions and replies. * * * * * (b) All arguments for the […]

The post MPEP Q & A 217: What are the Section 42.23 paragraph (b) Amendments? appeared first on Patent Education Series.

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MPEP Q & A 216: Time for Establishing ISR and WO of the International Search Authority

Tue, 02 Feb 2021 15:03:04 +0000

Question: What is the time limit for establishing the International Search Report and the Written Opinion of the International Searching Authority? Answer: Publication of the international application occurs at 18 months from the earliest priority date or, where there is no priority date, 18 months from the international filing date. The international search report is […]

The post MPEP Q & A 216: Time for Establishing ISR and WO of the International Search Authority appeared first on Patent Education Series.

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Getting Motivated: The Best Way to Study for the Patent Bar Exam

Tue, 26 Jan 2021 15:02:30 +0000

The patent bar exam is the biggest step in your journey to becoming a patent attorney or patent agent. In many cases, it will also be the last step you need to take to begin your career. Before taking the patent bar examination, you want to be prepared and brimming to the top with all […]

The post Getting Motivated: The Best Way to Study for the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Search Strategy for the Patent Bar Exam

Sat, 23 Jan 2021 15:58:29 +0000

You probably already realize you may use the MPEP during the Patent Bar exam. For many, that gives off the impression that the test is an open book exam you don’t really need to study for.  But an attitude like that will definitely result in failure. The fact is, although you can use the MPEP, […]

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How to Study for the Patent Bar Exam

Sat, 23 Jan 2021 15:28:32 +0000

The Patent Bar is a difficult test to prepare for no matter how you’re going about it. Whether you’re studying the Manual of Patent Examining Procedure (MPEP) on your own, reviewing a home study course, or taking a live class, the sheer volume of legalese can be difficult for even the most dedicated individual. In this […]

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Crush Your Patent Practitioner Interview

Sat, 23 Jan 2021 15:27:12 +0000

When it comes to landing the perfect job, there are a few rules that hold true for any industry. Naturally, the more specialized your focus, the more work you’ll need to put into your interview prep. If you’re aiming for a position as a patent agent or patent attorney, your prospective company will expect you […]

The post Crush Your Patent Practitioner Interview appeared first on Patent Education Series.

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Patent Bar Exam Study Planners

Sat, 23 Jan 2021 15:12:46 +0000

Pass the Patent Bar on Your Terms The PES-System was created to help you pass the Patent Bar Exam in a much shorter  amount of time and with less frustration than if you attempt it on your  own. Save your time and  concentrate your efforts on more important things like finding a job. Having a clear […]

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13 Simple Memorization Tips That’ll Help You Pass the Patent Bar Exam

Sat, 23 Jan 2021 15:02:59 +0000

Let’s face it: there’s a lot of material you’re going to have to memorize in order to pass the Patent Bar exam. Even if you cut out the extraneous material and focus on what’s most likely to be tested, you’ll soon find out there are countless dates and facts you’ve got to know cold. In […]

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MPEP Q & A 215: When Did Amendments to the Rules of Practice for Trials Before PTAB Take Effect?

Tue, 19 Jan 2021 15:03:48 +0000

Question: When did the PDF titled ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board’ take effect? Answer: This rule is effective May 2, 2016, and applies to all AIA petitions filed on or after the effective date and to any ongoing AIA preliminary proceeding or trial before the […]

The post MPEP Q & A 215: When Did Amendments to the Rules of Practice for Trials Before PTAB Take Effect? appeared first on Patent Education Series.

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Hunter A. Horton, Intellectual Property Attorney at Erise IP

Tue, 12 Jan 2021 15:03:08 +0000

Hunter is an Intellectual Property attorney. He clerked for two and a half years at Erise IP, P.A. during law school prior to starting full-time and is approaching the end of his third full year full-time. In total,  Hunter has spent approximately five and a half years in the IP law profession. The following is his […]

The post Hunter A. Horton, Intellectual Property Attorney at Erise IP appeared first on Patent Education Series.

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MPEP Q & A 214: What are Sufficient Grounds for Post-Grant Review?

Tue, 05 Jan 2021 15:03:33 +0000

Question: According to the PDF titled ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board’, what are sufficient grounds for a post-grant review? Answer: 37 CFR 42.208 (C) states that Post-grant review shall not be instituted for a ground of unpatentability unless the Board decides that the petition supporting […]

The post MPEP Q & A 214: What are Sufficient Grounds for Post-Grant Review? appeared first on Patent Education Series.

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Adam L.K. Philipp, Founding Member of Aeon Law

Tue, 29 Dec 2020 15:03:44 +0000

Adam is a Founding Member of Aeon Law, an Intellectual Property law firm. Adam has worked in the IP law profession for the last 25 years. The following is his Q & A interview. Why did you think this would be a good career for you? IP law is one of the most positive forms of […]

The post Adam L.K. Philipp, Founding Member of Aeon Law appeared first on Patent Education Series.

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MPEP Q & A 213: Can Attorney Arguments Take the Place of Evidence?

Tue, 22 Dec 2020 15:03:58 +0000

Question: Can attorney arguments take the place of evidence? Answer: No, the arguments of counsel cannot take the place of evidence in the record. Examples of attorney statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements regarding unexpected results, commercial success, solution of a long-felt need, […]

The post MPEP Q & A 213: Can Attorney Arguments Take the Place of Evidence? appeared first on Patent Education Series.

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Clifford Thomas Brazen, Patent Attorney at Erise IP

Tue, 15 Dec 2020 15:03:39 +0000

Clifford is a Patent Attorney who has been working in the IP profession since September 2014. From September 2014 until May 2016 Clifford was working on the patent prosecution side of patent law. In May 2016, Clifford moved to his current position at Erise IP, focusing on IP litigation. The following is his Q & A […]

The post Clifford Thomas Brazen, Patent Attorney at Erise IP appeared first on Patent Education Series.

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MPEP Q & A 212: What is the Number of Days Before an Oral Argument for Exchange of Exhibits?

Tue, 08 Dec 2020 15:03:38 +0000

Question: According to the PDF titled ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board’, what is the number of days before an oral argument for the exchange of exhibits? Answer: The number of days before an oral argument for the exchange of exhibits is at least 7 days. […]

The post MPEP Q & A 212: What is the Number of Days Before an Oral Argument for Exchange of Exhibits? appeared first on Patent Education Series.

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Ted D. Karr, IP Attorney & Partner at Berkeley Law & Technology Group LLP

Tue, 01 Dec 2020 15:03:15 +0000

Ted is an IP attorney and partner at Berkeley Law & Technology Group LLP, headquartered in Portland, Oregon. He has worked in the field of intellectual property law since 2001. The following is his Q & A interview. How did you get into a career in IP law? My first job out of law school […]

The post Ted D. Karr, IP Attorney & Partner at Berkeley Law & Technology Group LLP appeared first on Patent Education Series.

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MPEP Q & A 211: When May an Abandoned Application be Used as Prior Art?

Tue, 24 Nov 2020 15:03:39 +0000

Question: When may an abandoned application be used as prior art? Answer: An abandoned patent application may become evidence of prior art only when it has been appropriately disclosed, as, for example, when the abandoned patent [application] is reference[d] in the disclosure of another patent, in a publication, or by voluntary disclosure under former Defensive […]

The post MPEP Q & A 211: When May an Abandoned Application be Used as Prior Art? appeared first on Patent Education Series.

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Covid-19 and the Patent Bar

Tue, 17 Nov 2020 15:03:25 +0000

Covid-19 has caused enormous stress and trauma to our society and unfortunately, the strain doesn’t seem like it will end in 2020. I very much hoping that things will start to look up in 2021, but depending on when in 2021, it could still be a while. So I’d like to talk briefly about the […]

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MPEP Q & A 210: What is the Executive Summary of the Supplement ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board?

Tue, 10 Nov 2020 15:03:30 +0000

Question: What is the executive summary of the PDF titled ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board’? Answer: This final rule amends the existing consolidated set of rules relating to the United States Patent and Trademark Office (Office or USPTO) trial practice for IPR, PGR, CBM, and […]

The post MPEP Q & A 210: What is the Executive Summary of the Supplement ‘Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board? appeared first on Patent Education Series.

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Patent Bar Updates on Source Materials Starting October 13, 2020

Tue, 03 Nov 2020 15:03:33 +0000

  The USPTO changed the source materials of the Patent Bar exam starting October 13th, 2020. Our course includes the newest updates. Fortunately, the Patent Bar exam is still tested over the same version of the MPEP which is the Ninth Edition, Revision 08.2017 (January 2018 publication). This has been the tested version of the […]

The post Patent Bar Updates on Source Materials Starting October 13, 2020 appeared first on Patent Education Series.

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MPEP Q & A 209: Submission of an Oath or Declaration From a Prior Application

Tue, 27 Oct 2020 14:02:25 +0000

Question: Does a copy of an oath or declaration from a prior application need to be submitted with a continuation or divisional application, or with a continuation-in-part application filed on or after September 16, 2012 even if the oath or declaration identifies the application number of the prior application? Answer: Yes, a copy of an […]

The post MPEP Q & A 209: Submission of an Oath or Declaration From a Prior Application appeared first on Patent Education Series.

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How to Deal with Being Stressed When It Comes to Taking a Big Exam

Tue, 20 Oct 2020 14:02:48 +0000

Start Preparing for the Exam As Far Ahead of Time As You Can Giving yourself as much time to prepare for the exam as you can help keep your stress level at a minimum. By planning ahead, you’ll have time to find a pre-planned study schedule or set your study schedule, do plenty of practice […]

The post How to Deal with Being Stressed When It Comes to Taking a Big Exam appeared first on Patent Education Series.

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MPEP Q & A 208: Filing a Petition to Make an Application Special Without a Fee

Tue, 13 Oct 2020 14:02:08 +0000

Question: Is it possible to file a petition to make an application special without a fee? Answer: A petition to make an application special may be filed without a fee if the basis for the petition is: (1) The applicant’s age or health; or (2) That the invention will materially: (i) Enhance the quality of […]

The post MPEP Q & A 208: Filing a Petition to Make an Application Special Without a Fee appeared first on Patent Education Series.

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How to Take Better Notes when Studying for the Patent Bar Exam

Tue, 06 Oct 2020 14:02:23 +0000

Taking notes is essential for achieving academic success, yet few people know how to do it well. Note-taking is an excellent way for any student to improve their grades. Anyone who plans on taking the patent bar exam would be well-served to master the art of taking notes. Create a Detailed Outline Note-takers have long […]

The post How to Take Better Notes when Studying for the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 207: When Can a Practitioner Enter a Business Transaction with a Client

Tue, 29 Sep 2020 14:02:50 +0000

Question: When can a practitioner enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client? Answer: A practitioner shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a […]

The post MPEP Q & A 207: When Can a Practitioner Enter a Business Transaction with a Client appeared first on Patent Education Series.

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These news come from Patent Education Series.

Other Barks & Bites for Friday, June 18: Big Tech Critic Khan Sworn in as FTC Chair, CJEU Says Copyright Owners Can Request IP Addresses of Infringers, and International Cybercrime Prevention Act is Reintroduced

Fri, 18 Jun 2021 18:54:44 +0000

This week in Other Barks & Bites: Senators Tillis, Whitehouse, Graham and Blumenthal reintroduce bill to prevent cybercrime amid record year for ransomware attacks; Senators Crapo and Wyden introduce the FABS Act to create a 25% tax credit in domestic semiconductor manufacturing investment; the Federal Circuit affirms a Section 101 invalidation of digital camera patent claims over Judge Pauline Newman’s dissent that the claims cover a mechanical and electronic device; the Patent Trial and...

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Using AI to Valuate and Determine Essentiality for SEPs

Fri, 18 Jun 2021 11:15:36 +0000

One of the major challenges when licensing, transacting, or managing Standard Essential Patents (SEPs) is that there is no public database that provides information about verified SEPs. Standard-setting organizations (SSOs) such as ETSI (4G / 5G), IEEE (Wi-Fi), or ITUT (HEVC/VVC) maintain databases of so-called self-declared patents to document the fair, reasonable and non-discriminatory (FRAND) obligation. However, SSOs do not determine whether any of the declared patents are essential, nor...

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WIPO is seeking a Senior Legal Officer

Fri, 18 Jun 2021 09:15:07 +0000

The post is located in the Legislative, Policy and Technology Advice Section (LPTAS) of the Patent and Technology Law Division, Patents and Technology Sector. The Division is responsible for the implementation of WIPO's strategic goals concerning the balanced evolution of the international normative framework for intellectual property in the area of patents, utility models, undisclosed information/trade secrets and layout designs (topographies) of integrated circuits, and for providing...

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Trademarks Are Not Patents: The Second Circuit Rejects FTC Challenge to Trademark Settlements in 1-800 Contacts

Thu, 17 Jun 2021 20:15:25 +0000

In “big IP cases that count,” the U.S. Federal Trade Commission (FTC) has had a mixed record lately, going one-for-three – good in baseball but bad in government appellate litigation. (The biggest recent FTC loss that counts, the Supreme Court’s unanimous April 2021 AMG decision (see here), did not involve IP, but had major negative implications for the FTC’s future ability to obtain monetary relief in IP-related prosecutions). In August 2020, the Ninth Circuit vacated a district court “finding...

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Patent Filings Roundup: VLSI Judgment Patents Challenged; Dozens of NPE-Semiconductor Patents Instituted; Nanotechnology Solar Panel Litigation Kicks Off

Thu, 17 Jun 2021 16:15:30 +0000

It seems non-practicing entity (NPE) semiconductor/chip litigation has really come to dominate both the Patent Trial and Appeal Board (PTAB) and the district courts’ dockets this past year. Another average week at the PTAB saw 26 patent filings (five post grant reviews [PGRs] and 21 inter partes reviews [IPRs]), and the district courts saw another heavy week, with 89 new complaints. A slew of IPR challenges on chip patents owned and asserted by Arbor Global Strategies, LLC [Arbor Company, LLP]...

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Patent Procurement and Strategy for Business Success Part II: Claims – Targeting the Right Infringers

Thu, 17 Jun 2021 11:15:48 +0000

To protect the inventions that are important to a company's current and future success, the claims of the patents covering those inventions must accurately define the subject matter that is regarded as the invention and target the right infringers. Drafting claims that accurately define the subject matter that is regarded as the invention requires the crafting of claims to have metes and bounds that precisely circumscribe the subject matter which is regarded as the invention. This can be done...

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WIPO is seeking a Head, Legislative, Policy and Technology Advice Section

Thu, 17 Jun 2021 09:15:49 +0000

The post is located in the Legislative, Policy and Technology Advice Section of the Patent and Technology Law Division, Patents and Technology Sector.

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American Axle is the Supreme Court’s Chance to Give Patent Eligibility a Tune-Up

Wed, 16 Jun 2021 20:15:54 +0000

As I write this, the United States Supreme Court is deciding whether to grant certiorari in the American Axle case, setting the stage for another sea change in patent eligibility law. In 2020, the Federal Circuit issued a puzzling opinion penned by Judge Dyk finding American Axle’s method of manufacturing drive shaft assemblies (U.S. Pat. No. 7,774,911) to be a patent in-eligible law of nature. Specifically, claim 22 of the ‘911 patent recites “tuning a mass and a stiffness of at least one...

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First Circuit Rules Markham’s Development of ‘The Game of Life’ Was Work Made For Hire Not Subject to Termination Rights

Wed, 16 Jun 2021 16:27:33 +0000

On June 14, the U.S. Court of Appeals for the First Circuit issued a decision in Markham Concepts, Inc. v. Hasbro, Inc. affirming a lower court’s ruling that the game design firm that developed classic board game, “The Game of Life,” possessed no termination rights in Hasbro’s copyright to that game. In so ruling, the First Circuit reiterated that the “instance and expense” test to analyze work for hire status applies to works governed by the Copyright Act of 1909, and found that the district...

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Game On: How IP Helps the Video Game Industry Level Up

Wed, 16 Jun 2021 11:15:14 +0000

While countless industries have been forced to adapt to the COVID-19 pandemic, the video game industry has been on a winning streak. Historic numbers of people have turned to video games for social connection, competitive sport, and everything in between. By the numbers, one in three people on the planet play video games and, this week, millions of those people tuned into E3, the premiere event for game players and game creators alike.

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Judge Albright Enters New Standing Orders on Motions to Transfer for Conformity with CAFC Mandates

Tue, 15 Jun 2021 20:15:23 +0000

On June 8, U.S. District Judge Alan D. Albright of the Western District of Texas signed an amended pair of standing orders regarding motions to transfer filed in patent infringement cases on his docket. The standing orders, which limit venue and jurisdictional discovery as well as require party status reports on motions to transfer, balances judicial efficiency with fairness to patent litigators in a court that has absolutely become one of, if not the, most important court in U.S. patent law...

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Expanding Access to the ‘100-Day’ Program: ITC Announces Pilot Program Authorizing Interim Initial Determinations

Tue, 15 Jun 2021 16:15:11 +0000

Since the Supreme Court restricted access to permanent injunctions in eBay v. MercExchange, LLC, more and more patent owners have flocked to the International Trade Commission (ITC) to pursue a Section 337 investigation in hopes of obtaining a coveted and comparable exclusion order. These investigations address unfair practices in import trade—many of which involve allegations of patent infringement—and often lead to exclusion orders preventing infringers from importing their goods into the...

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Waiving IP Rights: The Wrong Path to the Right Goals

Tue, 15 Jun 2021 11:15:30 +0000

Waiving intellectual property (IP) protections for COVID-19 vaccines will hinder rather than further three meritorious objectives of the current U.S. Presidential Administration: ending the pandemic as soon as possible, leveling the IP playing field with China, and pursuing a worker-centric trade policy. Ensuring equitable, widespread, and successful distribution of vaccines across the globe to meet the challenges of COVID-19, ending the erosion of U.S. IP at the hands of China, and putting...

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CAFC Affirms District Court Section 101 Dismissal in Patent Infringement Suit Brought Against Samsung/Apple; Newman Dissents

Mon, 14 Jun 2021 20:15:47 +0000

On June 11, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the U.S. District Court for the Northern District of California’s grant of a motion to dismiss for Apple and Samsung in a patent infringement action brought by Yanbin Yu and Zhongxuan Zhang (collectively, “Yu”). Yu alleged infringement of Claims 1, 2, and 4 of U.S. Patent No. 6,611,289 (the ‘289 patent), titled “Digital Cameras Using Multiple Sensors with Multiple Lenses,” and the court dismissed due to ineligibility...

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This Week in Washington IP: The Role of Patents in Innovation Policy, Final Public Roundtable on the Trademark Modernization Act, and Vetting CAFC Nominee Cunningham

Mon, 14 Jun 2021 16:15:28 +0000

This week in Washington IP news, the Senate Antitrust Committee looks at anti-competition issues in the smart home electronics industry, while the full Senate Judiciary Committee meets later in the week to discuss the nomination of Tiffany Cunningham to join the Federal Circuit bench. In the House of Representatives, committee hearings will focus on incorporating central bank digital currencies into the nation’s financial system, ways to improve small business prospects through improved...

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If so then you could be Eligible to claim compensation against the nominal defendant.

It is important to seek legal advice immediately. - please complete your free legal enquiry form to be put in contact with a lawyer who can help you with your claim.

If you have been injured in a Road related accident either as a driver, passenger, pedestrian, motorcyclist or cyclist, you could be entitled to claim a significant compensation payout. You should seek legal advice immediately to find out what you could be entitled to claim.

Legal advice for family law matters

Do you need legal advice regarding family law? If so, please complete your free legal enquiry form. Going through a separation and divorce can be a difficult time for those involved and that's why the process needs to run as smoothly as possible. It is therefore important that proper legal advice be obtained from a qualified legal practitioner practising family law who can help you and give you the legal advice you need to guide you through your difficult situation and ensure that the matter is dealt with as fairly as possible. Please complete your free legal enquiry form to find out more.

Car Accident Compensation

Have you been in a car accident? where you a driver, rider, passenger or pedestrian? If you answered "yes" to any of those questions, then you could be entitled to claim a significant compensation payout. To find out more please complete your free legal enquiry form.

 

Cyclist Accidents and Injuries

Quite often cyclists are not given proper care and attention by other road users. This can result in accidents occurring between car, trucks and other motor vehicles with bicycle riders. Motorists often fail to give way to cyclists therby causing an accident with the cyclist.

If you are a cyclist who has been involved in an accident, then the chances are you could be entitled to receive a significant compensation payout from the CTP insurer of the driver that caused the accident.

To find out more, please complete your free legal enquiry form.

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