The much anticipated “Raising the Bar” Bill was passed by the Senate last night without amendment. It is expected to go to the House of Representatives later this week, with Royal Assent to follow shortly thereafter. In view of the 12 month commencement period following Royal Assent, the earliest commencement date for the new legislation will be March 2013. Copies of the “Raising the Bar” Bill and the Explanatory Memorandum are available.
The new provisions will introduce a number of reforms to Australia’s IP system, and are intended to encourage innovation by supporting investment in research and technology. Presently, amendments are proposed for all of Australia’s IP regimes, including the Patents Act 1990, Trade Marks Act 1995, Copyright Act 1968, Designs Act 2003 and Plant Breeders’ Rights Act 1994. Specifically, the following key areas are marked for reform:
- Raising the quality and standard of granted patents;
- Providing access to patented inventions for regulatory approvals and research;
- Reducing delays in patent and trade mark applications;
- Improving mechanisms for trade mark and copyright enforcement; and
- Simplifying the IP system.
However, the vast majority of the amendments relate to the Patents Act 1990, including:
- A more stringent test of inventiveness;
- A new assessment of utility, requiring disclosure of “a specific, substantial and credible use” for the invention;
- A new sufficiency requirement likely to require applicants to provide further description and examples;
- Current “fair basis” requirement will be amended to align with the disclosure rules in Europe;
- As well as further changes to examination and re-examination, amendments, infringement exemptions, grace periods, modified examination, attorney-client privilege and opposition practice.
Regulations governing the new provisions are yet to be published. However, presently the abovementioned changes will apply to patent applications that have already been filed, but not yet examined at the Commencement Date of the new Act. In view of this, Applicants and inventors are encouraged to seek advice from a registered attorney in order to ensure they are not adversely affected.