1. Introduction
Patent law is used to restrict and prevent others from using an invention, giving the owner exclusive rights for a certain period of time. Per s 18 of the Patent Act 1990 (“the Act”), a standard patent has four requirements. The focus of this essay will be on s 18(1)(d), ‘secret use’. The rationale behind this is to effectively prevents a patentee from extending the monopoly date. If secret use is breached before patenting, patentability may be destroyed. However, the introduction of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“Raising the Bar Act”), a grace period exists.
The Raising the Bar Act clarifies that “any use of the invention … for any purpose” is not secret use. While section 9 provides for actions that are deemed not to be secret use, there is no clear definition of secret use in legislation. This essay will explore Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75, one of Australia’s seminal patent law cases in relation to the definition of “use”.
2. Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75
2.1. Facts
The initial proceedings were brought from Old Digger Pty …show more content…
Gyles J’s reasoning is similar to that of the rationale of US patent law. US patent law give inventors time to perfect or decide whether or to continue pursuing an invention. Current US patent legislation endorse the “on-sale bar” which is a restriction on an invention’s patentability if it has been on sale for more than a year. However, while equating “secret use” to commercial use, the majority judgement elucidate the uncertainty of the term. Rather than focusing on the fundamental meaning of the words “secret” or “use” provides the Bristol Myers practical
Patent law is used to restrict and prevent others from using an invention, giving the owner exclusive rights for a certain period of time. Per s 18 of the Patent Act 1990 (“the Act”), a standard patent has four requirements. The focus of this essay will be on s 18(1)(d), ‘secret use’. The rationale behind this is to effectively prevents a patentee from extending the monopoly date. If secret use is breached before patenting, patentability may be destroyed. However, the introduction of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“Raising the Bar Act”), a grace period exists.
The Raising the Bar Act clarifies that “any use of the invention … for any purpose” is not secret use. While section 9 provides for actions that are deemed not to be secret use, there is no clear definition of secret use in legislation. This essay will explore Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75, one of Australia’s seminal patent law cases in relation to the definition of “use”.
2. Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75
2.1. Facts
The initial proceedings were brought from Old Digger Pty …show more content…
Gyles J’s reasoning is similar to that of the rationale of US patent law. US patent law give inventors time to perfect or decide whether or to continue pursuing an invention. Current US patent legislation endorse the “on-sale bar” which is a restriction on an invention’s patentability if it has been on sale for more than a year. However, while equating “secret use” to commercial use, the majority judgement elucidate the uncertainty of the term. Rather than focusing on the fundamental meaning of the words “secret” or “use” provides the Bristol Myers practical