The United States first recognized the importance of patents before its founding and authorized the granting of patents in Article One, section 8, clause 8 of the U.S. Constitution. The first patent law was passed several years later, in 1790. As such, U.S. patents have a history of over two hundred and thirty years. The […]
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First US surgeries performed in October LONDON, Nov. 2, 2021 /PRNewswire/ -- Smith+Nephew (LSE:SN, NYSE:SNN), the global medical technology business, today announces the...
The innovation patent has been Australia’s second tier patent right since 2001, but it is now being phased out. Just over two months have now passed since the final day on which new, original (i.e. not derived from an existing application) innovation patents could be filed. As of 26 August 2021, the only way to obtain an innovation patent application is by division or conversion from an application that itself has a filing date on or before 25 August 2021. Innovation patents have a maximum term of eight years from the initial filing date, and thus after 25 August 2029, at the latest, there will be no more innovation patents. Predictably, the number of innovation patent applications being filed grew significantly during the weeks and months leading up to the final deadline, driven in large part by applications of dubious merit originating in China and India.
So how did filing numbers end up? And why has it taken two months for me to get around to this analysis? Well, to answer the second question first, the huge deluge of applications – nearly 2,800 over 25 days in August, over half of which were filed in the final six days – created a backlog that IP Australia is still clearing. As at the time of writing, there remain around 300 innovation patent applications that are yet to be processed in any way, meaning that details of who filed them, and who the applicants are (and where they are from) remain unavailable. At this point, however, a clear picture is emerging. Furthermore, there is some evidence that IP Australia has been prioritising the order in which the remaining applications are being processed according to the workload involved, such that almost all unprocessed applications were filed by Indian applicants.
In the final days, Australian resident applicants filed innovation patent applications in unprecedented numbers, apparently driven primarily by those who had received advice from patent attorneys about the final deadline and the implications of the phase out of the innovation patent. Indian and Chinese applicants continued to fleece the system for cheap patent certificates, accounting for over half of the applications filed in August. Filings originating elsewhere in the world increased only modestly, suggesting that genuine demand for innovation patents by foreign applicants remained relatively low until the end.
The use of paper checks has been on the decline since the early 2000s, but a large portion of the population still relies on these physical check transactions. Nowadays, consumers want to clear their checks without waiting for hours or days — which is why they prefer digital transactions because they are more convenient and […]
Okay. I’m starting a new segmented article that will deal with all the latest updates in Lords Mobile. You’re welcome, losers. As the new updates come out in Lords Mobile, click this link and you’ll hear my (very-mellow) opinion how good or dreadful I think it is! LM Users Locked...
The buy or build software debate has been going on long enough, and it is time we settled it. To better understand, let us take you down history lane. During the industrial revolution, the economy of Europe was flourishing. Due to this, companies started hiring third parties to take some workload off their shoulders. Hence […]
It should be said at the outset that the US law is very different to that of Australia, and it is therefore unlikely that anything in Judge Brinkema’s legal reasoning will be influential upon the Full Court. It has also become apparent through the UK High Court and Court of Appeal decisions that while the UK law shares some similarities with the corresponding provisions of the Australian Patents Act 1990, there are also some significant differences. Even so, there are aspects of the reasoning of Lord Justice Arnold in the Court of Appeal that the Australian appeals court may consider persuasive, and that could therefore influence the outcome here.
There are two key questions likely to be addressed in the appeal, both of which also arose in the UK, although only the first received substantive attention in the US. These are:
Can DABUS, as an ‘AI’ machine and not a human being, validly be named as an inventor on a patent application?
Can Dr Thaler, not being (at his own insistence) the inventor, establish a proper legal basis for entitlement to the grant of patents on inventions said to be generated by DABUS?
On 27 August 2021, the Commissioner of Patents lodged an appeal (case no. VID496/2021) against the decision of Justice Beach in the Federal Court of Australia finding that the ‘AI’ machine known as DABUS could be named as sole inventor on an Australian patent application. Unusually, and presumably in recognition of the media and public interest generated by this case, IP Australia took the step of announcing the filing of the appeal, while emphasising that ‘[t]he appeal is centred on questions of law and the interpretation of the patents legislation as it currently stands’ and that ‘[t]he decision to appeal does not represent a policy position by the Australian Government on whether AI should or could ever be considered an inventor on a patent application.’ The appeal will most likely be heard by a Full Bench of the Federal Court comprising three judges, although in rare cases deemed sufficiently significant a five judge panel may be assigned. A hearing could take place as early as November this year, but at this stage it seems more likely to be scheduled for early in 2022.
These cases are, of course, of interest because they concern the fascinating question of whether non-human machines can be inventors for the purposes of obtaining patent. But they are also interesting for what they reveal about the differences between the treatment of inventors under US and UK law. In the US the inventor is central and indispensable – a position that arguably derives ultimately from the Constitutional authority for Congress to make laws ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. In the UK, however – and in the view of Birss LJ in particular – the identity of the inventor is almost irrelevant in the majority of patents applied for, prosecuted and granted.
I will cover these latest developments in the DABUS saga over a series of three articles. In this first article, I will look at the approach taken to the role of the inventor in the US, how it differs from other jurisdictions, and the recent decision from the EDVA. The second article will cover the split decision in the UK, and how the differing opinions of eminent patent jurists Arnold LJ and Birss LJ stack up. Finally, in the third part I will look at where Australia sits, and consider whether either of the US and UK decisions may be of any relevance in the upcoming Full Court appeal.