The owners of all patents (including plant and animal patents) have a fixed term exclusive right to exploit the invention or authorise another person to exploit the invention. Provided renewal fees are paid, the term of a standard patent in Australia is 20 years from the date of filing the complete application.3 As in most other countries, “exploit” includes the manufacture, use, importing and marketing of the invention. The exclusive right to exploit the invention is not unconditional in that, although the right provides for the exclusion of other parties, it does not confer on the patentee the right to perform the invention. Many patented inventions are developments of previous ones and the rights overlap. In these situations the patentee may need to seek a licence from the rights holder of the earlier technology. In Australia, product and process patents are subject to the same rules as other patents. However see also the answer to question 7. Plant and animal patents confer on their owners the same protection as stipulated in Article 28 of the TRIPS Agreement. Owners of product patents by taking infringement action can prevent third parties from making, using, offering for sale, selling or importing patented products without their consent. Similarly, owners of process patents can prevent third parties from using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
[Answer A.7: In Australia, a patent application must be published about 18 months after its earliest priority date. The public is notified in the Australian Official Journal of Patents (AOJP), copies of which are held in IP Australia offices around Australia. Published patent specifications are then made available to the public and are sent to certain libraries and overseas patent offices. From late January 1999, it is planned to also deliver the specifications on CD-ROM and via the internet. Section 40(2)(a) of the Patents Act sets out the requirements of a complete specification: "A complete specification must: describe the invention fully, including the best method known to the applicant of performing the invention." The specification is considered sufficient if, on reading it, a skilled worker can understand the nature of the invention and how to put it into practice. The skilled worker must have a reasonably competent knowledge and skill in the art to which the patent applies. He/she can use this knowledge and skill to rectify any mistakes, supply omissions in the specification or to conduct routine trials as long as this does not require the exercise of any inventive faculty. If the skilled worker has to exercise prolonged research, inquiry, experimentation or further invention in order to put the described invention in practice then the specification would not be sufficient. In summary, where a skilled worker could practise an invention using well known techniques without an undue burden of experimentation, the Patent Office would not require specific details or examples concerning the practice of the invention to be provided in the specification. Section 41 of the Patents Act sets out the additional requirements for specifications relating to micro-organisms. In summary, a deposit is strictly necessary if: (1) an invention involves the modification or cultivation of a micro-organism (other than where the micro-organism itself is an invention); and (2) a person skilled in the relevant art in the patent area could not be reasonably expected to perform the invention without having a sample of the micro-organism ; and (3) the micro-organism is not reasonably available to a person skilled in the relevant art in the patent area. The Patent Office would also require a deposit if the claimed micro-organism could not be reasonably expected to be obtained by reproduction or generated based on the information supplied in the specification, for example where the invention resides in an organism produced by a random mutation process or is a specific hybridoma secreting a particular monoclonal antibody. Otherwise deposits are not required but applicants can choose to deposit if they wish. The Patent Office accepts that a written description can in some circumstances provide the skilled worker with enough detail to reproduce the inventive micro-organism and that this information would be a sufficient disclosure. The Patent Office does not accept deposits made with institutions other than those recognised under the Budapest treaty. However if the invention and claims relate to a use, cultivation or modification of a micro-organism, the office accepts that deposits other than those made by the applicant could be readily available as required by point (3) above. In that circumstance, the applicant would not require a Budapest Treaty deposit. The Patent Office accepts any form of deposit that is reproducible and which is accepted by international depository authorities (including plant cell cultures, plasmids and seeds) but notes that international depository authorities have limitations on the nature of materials they will accept and the Patent Office is bound by any such limits.]