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One of the most commonly misunderstood elements of intellectual property is patenting. Below is the first in a three-part series to shed some light on the protection of inventions and innovations by patents.
IP Australia defines a patent as “a right that is granted for any device, substance, method or process that is new, inventive, and useful.”
Patentable material includes new processes, devices, instruments, formulations, machines, manufactures, composition of matter, and any new or useful improvements of the former. Patent law is often adjusted so it is always best to get credible advice.
A patent enables the owner of the patent to exclude others from making, using, or selling the invention for twenty years from the date of filing the application within the geography (country) that the patent is enforceable. Patents are legally enforceable under the laws and governmental IP authority of the relevant geography.
As technologies constantly evolve, so too does the patent system, and in particular the definition of what constitutes patentable subject matter.
One of the most rapid changes in the past 20 years in this respect has occurred in the biological and medical sciences. In Australia, the range of patentable inventions in these areas is extremely diverse, including pharmaceuticals, vaccines, antibodies, hybridomas, cell lines, vectors and isolated compounds (including nucleic acids and proteins).
In terms of compounds, these may be novel in themselves, alternatively new uses of known compounds may also be patentable. Further, recombinant or transgenic organisms (viruses, bacteria, yeast, plants and animals) are also patentable.
Protection can also be obtained for methods and processes, such as processes for production, methods of diagnosis, methods of screening and methods of medical and surgical treatment.
Although what constitutes patentable subject matter may vary from country to country, most jurisdictions allow a similar range of biological medical inventions to be patented to those listed above.
The major exception to this relates to methods of medical treatment. Most notably, in Europe and Canada, for example, methods of medical treatment are not patentable.
However, with careful claim drafting, protection of a similar scope can be obtained.