A patent is
a temporary monopoly given by the government to the inventor for the exclusive
use of and the right to sell the new invention in return for public disclosure
in the patent application
The effects of patent law
Patent
protection gives a strategy for the management of intellectual assets which
gives security to stimulate research and development during the period of
patent.
Patent law
has the following effects:
1.
Patent
law gives the owner legal protection in exchange for disclosing the invention in
the patent application.
2.
The
owner gets a temporary monopoly once a patent is registered, but this monopoly
is only as good as the ability of the owner to defend the patent from being
infringed.
3.
Lodging
and registering a patent application and specification is expensive and is
usually handled by a patent attorney.
4.
Somme
owners choose not to apply for a patent so they will not have to disclose their
invention and lose their competitive edge. Some with smaller, “incremental’
inventions, may instead apply for an innovation patent, which can be obtained
quickly.
Patents and employment
The
Copyright Act 1968 (Cth) provides that copyright of an employee usually vests
in the employer, but in contrast, the Patents Act 1990 (Cth) does not provide
that an invention developed by an employee would be owned by the employer.
There may be an express or implied term in the contract of employment that the
employee must assign patent rights to the employer.
Case Example: University of Western Australia v
Gray [2009] FCAFC 116
Innovation patents
Innovation
patents are “second tier” patents which provide eight-year protection for lower
level inventions that are not sufficiently inventive to qualify for a standard
patent (s68). They cannot be claimed for plants, animals and biological
processes.
They are designed
to provide an incentive to small to medium business and local industry to
invest in innovation. They take away some of the financial and commercial risks
involved in the research and development of a new invention, and they are a
first step to commercializing a new idea.
Standard patents
Standard
patents extend for 20 years from the date of the patent (s67). Pharmaceutical
patents extend to 25 years.
