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Lecture

Weeks 11,12,13 - Patents

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
PATENTS (Weeks 11-13) Outline: A) INTRODUCTION B) TYPES OF PATENTS & DURATION C) PATENTABLE SUBJECT MATTER 1. Is a ‘manner of manufacture’ within the meaning of s6 Statute of Monopolies 2. Is novel 3. Involves an: 3A: Inventive step (STANDARD PATENT): s18(1)(a) 3B: Innovative step (INNOVATION PATENT): s18(1A)(a) 4. Is has utility or usefulness 5. Has not been used before the priority date 6. Conclusion as to Patentability D) PATENT APPLICATION PROCESS 1. Who can apply? (ownership) 2. Timeline A) File Patent B) Examination C) Acceptance D) Grant E) Opposition F) Revocation E) INFRINGEMENT 1. Bringing Proceedings 2. Direct Infringement 3. Contributory Infringement 4. Exemptions to Infringement 5. Remedies 6. Unjustified Threats F) ASSIGNMENT/LICENCING 1. Assignment 2. Licence 3. Compulsory Licence A) INTRODUCTION What is a patent? • Grant by the crown • Of exclusive right • To exploit an invention • Throughout the patent territory (domestic only) • For the duration of the patent History Earlier patents were not as narrow as they are today – they covered anything new that was brought in, and it was not necessarily confined to inventions. Patents provided an artificial and unfair advantage to traders. The Crown granted patents to people for money in order to raise revenue. However, the Statute of Monopolies was enacted, which provided that patents could only be granted to an inventor and for inventions. Today, Australian patent law is governed by the Patents Act 1990 (Cth) and the Patents Regulations. Rationale of the patent system • To Encourage Innovation: o Reward inventors for the effort and expenditure incurred in developing an invention o So that the public may ultimately benefit from the technological advancement that invention brings • To disseminate new knowledge: o by requiring the patent holder to publish a description of the invention and how it works During term of patent: community has benefit of the invention and technology behind it is disclosed After it expires: the invention falls into the public domain and anyone can make use of it, which allows others to use or create advances) Examples of patents granted Products Processes • Ball point pen • Method of mixing known chemicals together • Victa lawn mower and applying crops to kill weeds • Computer software • Cashless mobile phone payment system • Adobe Acrobat Reader • Purification and isolation methods for • Synthetic genes biomechanical cell lines • Amazon.com’s ‘one-click ordering’ system • Orbital engine • Cochlear’s Bionic ear • Water purification device Need Product or Processes? Patent protection is not limited to tangible products – intangible processes are able to be patented (NRDC). A method is something that is intangible. However, in order to be patentable, there must be a physical element to the method – the method must act upon physical rights (Grant v Commissioner of Patents). Without the physical effect, the method is purely intangible and is incapable of being protected by patent law (Grant v Commissioner of Patents). Things that cannot be patented • Solely artistic creations (e.g. the Mona Lisa) • Principles, theories or mathematical models (e.g. E = mc ) – these are technically mere discoveries • Purely mental processes with no tangible commercial application (i.e. an abstract idea) • Mere discoveries (e.g. human DNA) o Methods of isolating DNA can be patented, but DNA itself cannot be patented International aspects of patents Patent law is a domestic matter, but the content of Australian patent law is largely dictated by what is provided in international law. International treaties tell the Federal Parliament what the content should be in our Federal Patent Act(s). • Agreement on the Trade Related Aspects of Intellectual Property 1994 (TRIPS) – administered by the World Trade Organisation (WTO) • Paris Convention for the Protection of Industrial Property 1883 • Patent Co-operation Treaty 1970 (PCT) – helps streamline patents in each country; single application that can be filled and that application is sent to different countries/jurisdictions Constitutional validity Section 51(xviii) of the Constitution gives Parliament the power to make laws with respect to copyrights, patents of inventions and designs and trade marks. This gives the Federal Parliament the power to enact patent and intellectual property Acts. The question of whether the plant breeder’s rights regime was encapsulated in s 51(xviii) of the Constitution was discussed in Grain Pool of Western Australia v Commonwealth. In that case, the High Court stated that the description of an ‘invention’ would change over time to reflect developments in technology. The High Court said that there is a diamondism inherent in the term used in the Constitution to reflect that future change. Further, the external affairs power in s 51(xxix) gives the Federal Parliament the power to implement international treaties that the Executive branch of government has agreed to. There is also the s 51(vi) post and telegraph power and the incidental power under s 51(xxxix). B) TYPES OF PATENTS & DURATION 1. Standard patent • Requires an inventive step • Duration is 20 years: s 67, 65. IF Pharmaceutical Product: There is an extension of duration of term for the time needed for testing pharmaceuticals, for a maximum of a further 5 year period: s70-79A. Purpose: to take into account the rigorous testing processes as required before it can be sold to the market.  testing must occur after patent application has been submitted (to remain secret), thus only fair that should be extended to compensate for time lost on testing. 2. Innovation patent • Requires an innovative step (lesser degree of inventiveness) • Duration is 8 years: s68. N.B. The innovation patent is a fairly new creature – it was introduced in 2001 to replace a “petty patent” Duration date measured from: The duration of a patent is measured from the date of the patent, that is, the date the complete specification is filed (subject to what is provided for in the regulations). C) PATENTABLE SUBJECT MATTER State: An invention is patentable if it: s18 1. Is a ‘manner of manufacture’ within the meaning of s6 Statute of Monopolies (SoM) 2. Is novel 3. Involves an: 3A Inventive step (STANDARD PATENT): s18(1)(a) OR 3B Innovative step (INNOVATION PATENT): s18(1A)(a) 4. Is has utility or usefulness 5. Has not been secretly used before the priority date 1. INVENTION Invention = any manner of new manufacture the subject of letters patent and grant of privilege within section 6 Statute of Monopolies, and any alleged inventions: Sch 1 Dictionary. However this is to be read with s18: NV Phillips v Mirabella. EXAMPLE NV Philips Gloeilampenfabrieken v Mirabella International Facts: Patent of compact fluorescent lamps Held: It was apparent on the face of the application that the claim was for a known material (phosphor) for use in known articles where its qualities were well known - patent failed to pass the threshold test. “The threshold requirement of an “alleged invention” will, notwithstanding an assertion of “newness”, remain unsatisfied if it is apparent on the face of the relevant specification that the subject matter of the claim is, by reason of the absence of the necessary quality of inventiveness, not a manner of new manufacture for the purposes of the Statute of Monopolies.” 2. MANNER OF MANUFACTURE State: Subject matter of claim must disclose a ‘manner of new manufacture’ within s6 SoM: s18. Test is common law, not literal statutory interpretation (manner of manufacture is merely a general title for the whole category of patentable material): NRDC. In NRDC, a case dealing with a patent for the method of mixing known herbicidal chemicals together to create a weed treatment. In accepting the patent, the court held that a policy driven approach should be adopted when defining the scope of patentable subject matter; and that patentable subject matter is a broad and flexible concept, dynamically changing over time, and needs to be able to response to new technologies as they arrive. N.B. This is discussed under each IF: To be a manner of manufacture, the invention must: NRDC • Be a ‘vendible product’ o ‘product’ is taken to mean every end produced o ‘vendible’ points to utility and practical affairs • Be a useful art as distinct from a fine art • Produce a new and useful result of specific practical application • Be economic significant or have a commercially useful effect o i.e. be of value to the country in the field of economic endeavour • Be an “industrial or commercial trading character” about the process • Be one that offers some material advantage • Not be mere discoveries, ideas, scientific theories or laws of nature EXAMPLE National Research Development Corporation v Comm of Patents (NRDC) Facts: Application for patent for a herbicidal composition of known chemicals – the application was for the method of mixing the chemicals together to treat crops (a weed treatment which did not harm certain broad leafed crops). Held (Commissioner of Patents): rejected - because it was considered that this was merely a new use of a known substance and did not result in the creation of a physical or tangible ‘vendible product’. Held (HC on Appeal): Disagreed with Commissioner - application did disclose a patentable invention and did disclose a vendible product, a new process for ridding certain types of weeds allowing crops to grow. Patentable subject matter is a broad and flexible concept, dynamically changing over time, and needs to be able to response to new technologies as they arrive. The correct question is whether the thing is a proper subject of letters patent according to the principles regarding the application of s6 of the Statute of Monopolies. Don’t need to directly produce a vendible product – so long as it is a process which produces a useful result of economic significance. Outcome of the patent was achieved, not by using known chemicals, but by applying chemicals previously not known to be useful for this type of purpose – thus method of mixing chemicals was held to be a patentable method. In order to be a manner of manufacture, the invention must be a ‘vendible product’, where the word ‘product’ is taken to mean every end produced and ‘vendible’ points to utility and practical affairs – although don’t need to directly produce a vendible product – so long as it is a process which produces a useful result of economic significance. To be a “manner of new manufacture” and hence patentable, an invention must: o Have an “industrial or commercial trading character” o Be one that offers some material advantage o Belong to a useful art as distinct from a fine art o Be of value to the country in the field of economic endeavour IF BUSINESS METHOD: Here, (patent subject matter) is a business model. It is a (process/sequence of steps) to (obtain a result). Business methods involving the application of physical devices have been found to be capable of patent protection: State Street Bank & Trust Co v Signature Financial Group (US); Welcome Real-Time v Catuity. EXAMPLE State Street (US CASE) Facts: Patent involved the transformation of data representing monitoring circuit inputs to work out a final share price Held: US Federal Court of Appeal (Appeal Circuit) determined that business methods are subject to the same legal requirements that apply to any other patentable invention. Business methods are not to be treated as a special class that is automatically unpatentable. Here, this method was held to be a practical application of a mathematical algorithm because it produced a tangible result in the form of a share price - computer processed a result that is useful - thus, the business method was held to be patentable. EXAMPLE Welcome Real-Time v Catuity Facts: Patent for a method of operating a customer loyalty scheme by configuring a smart card with a magnetic strip. Smart card held customer loyalty points for different reward schemes for various bodies (better and more advanced than Fly Buys) Held: Smart card satisfied the ‘inventive’ requirement because it allowed a large amount of data to be stored in the magnetic strip (used dynamic allocation allowing for more data of different types to be stored in its magnetic strip and overcoming the problem of limited space on earlier smart cards). Heerey J adopted the NRDC test and held that this invention satisfied the patentability test because it was a state of affairs producing some output. However the recent decision of Grant v Commissioner of Patents has held that a method of structuring a financial transaction that protects an individual’s assets was not patentable because: 1. It did not have a physical effect or phenomenon: @ [32]. The court reasoned that in the above cases there was a component physically affected or a change in state or information in a part of a device or machine. They regarded this as merely ‘intellectual information’ @[14]-[23]. 2. It was a mere discovery of a way in which the law operated (included other transactions, advices, schemes and arguments as discoveries also) and thus lacked the necessary ‘industrial, commercial or trading character’ and are discoveries rather than inventions. This first reason appears contradictory to existing law. The court went from acknowledging the NRDC left the question unresolved, and that Heerey J left it unanswered, to holding that physical aspect is necessary. Additionally equating a lack of a physical aspect with the invention being only a mere scheme or intellectual information, is inconsistent with NRDC principles because it ignores the possibility that an intangible method might produce useful practical outcomes. In this regard, the patent clearly disclosed a practical application and means of implementing it – i.e. the protection of the assets of the person from the claims of creditors – the lack of a physical aspect does not cause it to lack practical effect. In relation to the second reason, the court failed to explain why the use of ingenuity in legal practice is not of a commercial character – especially when the practise of law is a profit-driven commercial enterprise. Surely innovative developments in the law’s application are of economic significance and are of a commercial character. Additionally there was no explanation of why this was classified as a legal discovery – surely the invention was a practical application of the discovery. Applying Grant, the patent here would not be granted because it lacks a physical aspect & it would be classified as a discovery. However there is some doubt over the decision of the Full Court, and applying the principles in NRDC however the patent would arguably be granted because: • There is a vendible product – that is produces (e.g. share price/transaction with asset protection/loyalty program) which is useful (broad definitions) o ‘vendible’ points to utility and practical affairs o ‘product’ is taken to mean every end produced Additionally it is worthy to note that in NRDC, the vendible product need not be directly produced providing the invention is a process which produces a useful result of economic significance. • This is a useful art not fine art – it is a form of technology – namely by serving the purpose of (purpose) • It produces a new and useful result of specific practical application and is thus not just an idea (e.g. applied in transactions) • It has economic significance and a commercially useful effect (e.g. someone would pay for it/can be sold/used for profit) • There is an industrial/commercial trading character about the process (e.g. can be commercialised) • Consistent with the arguments above, it is not a mere discovery (or idea/scientific theory/law of nature) but instead a practical application. Examples: • Granted: transformation of inputs to work out a share price: State Street • Granted: a method of operating a customer loyalty program by configuring a smart card with a magnetic strip: Welcome Real-Time • Denied: method of structuring a financial transaction that protects an individual’s assets by creating a first charge on the asset so that creditors will rank after the trustee: Grant v Commissioner of Patents EXAMPLE Grant v Commissioner of Patents Facts: Patent for method of structuring a financial transaction with the aim of protecting an individual’s assets by creating a first charge on the asset so that the creditor will rank after the trustee. Held: Not Patentable - as there was no physical effect - mere legal discovery (of a way in which Australian trust law operates) thus no inventiveness Full Federal Court imposed a requirement that a method must have some physical effect or phenomenon in order to be patentable. IF BIOTECHNOLOGY: Here, (patent subject matter) is biotechnology – because it is the use of biology and chemistry to produce new processes or methods that have technological aspects. Here, applying the reasoning in NRDC: • There is a vendible product – that is produces (e.g. entity/element in isolation) which is useful (broad definitions) o ‘vendible’ points to utility and practical affairs o ‘product’ is taken to mean every end produced • This is a useful art not fine art – it is a form of technology – namely by serving the purpose of (purpose) • It produces a new and useful result of specific practical application (e.g. laboratory isolation of ___) • It has economic significance and a commercially useful effect (e.g. someone would pay for it/can be sold/used for profit) • There is an industrial/commercial trading character about the process (e.g. can be commercialised/used in economic affairs) Here though these is some question about whether it is a mere discovery: (apply below ifs) IF biological entity: (e.g. proteins) Biological entities may be patentable if a technical intervention has resulted in the creation of an artificial state of affairs which does not occur in nature. This is in accordance with the NRDC test. IF naturally occurring entity: Naturally occurring micro-organisms are not patentable as they represent a discovery and not an invention: Ranks Hovis McDougall Application. If involves technical intervention: A new plant or animal can be regarded as a manner of manufacture if it involves the technical intervention of man and is useful in eco-affairs: Ranks Hovis McDougall Ltd’s Application. EXAMPLE Ranks Hovis McDougall Ltd’s Application Facts: artificial variants of a new strain of micro-organism that produced an edible protein – method of replicating that occurs in nature (i.e. synthetic) Held (Comm of Patents): new plant or animal can be regarded as a manner of manufacture if it involve the technical intervention of man and is useful in economic affair. Therefore, it is possible to patent a living organism, but it must be a man made living organism IF genetically engineered: However, it was recognised in Diamond v Chakrabarty that patent protection is available for living, genetically engineered micro organisms. Burger CJ commenting that this was a non-naturally occurring manufacture or composition of matter – a product of human ingenuity. Here, __________. EXAMPLE Diamond v Chakrabarty (US CASE) Facts: New man-made strain of bacteria was developed for digesting oil spills - organism was man-made and could only be produced under carefully controlled laboratory conditions. Held: Patentable - recognised that patent protection is available for living, genetically engineered micro organisms. IF a pure culture: A claim to a pure culture in the presence of some specified ingredients would satisfy the requirement of a technical invention: Ranks Hovis McDougall Ltd’s Application. This is because an artificial variance of a new strain of micro-organism that produced an edible protein. N.B. must relate to the working of the organism not the appearance. IF merely something existing in nature: (e.g. gene) It is not possible to patent a gene because this would be a mere discovery and unpatentable: : Ranks Hovis McDougall Ltd’s Application IF method of isolating: However, it is possible to patent a method of isolating chemical substances, genes or existing organisms. The method of isolation must be done in a way that makes it useful. A method associated with isolating a gene is to change its form to one that is useful and therefore, it will be patentable. IF only method to isolate: Problems can arise where there is only one method of isolating the gene, as the patentee would have the exclusive right to use the method to isolate the gene, hence exclusive rights to use the gene. IF METHOD OF TREATING HUMAN BODY: Section 18(2) expressly provides that human beings and biological processes of producing human beings are not patentable – and initially neither were methods for treating humans: Joos v Comm of Patents. EXAMPLE Joos v Commissioner of Patents Facts: Patent over a cosmetic treatment process for improving the strength and elasticity of human nails and hair. Held: Had commercial application in the hairdressing field so as to be within the NRDC definition of ‘invention’ - Barwick CJ pointed out that there were significant benefits to the economy in effective treatments or surgery. However rejected - on the basis that it was a method of treatment of human beings. There are two key conflicting policy considerations: 1. Public Policy: if patent is granted some people will not be able to access the invention and may die as a result – which conflicts with the sanctity of human life 2. Encouragement of Innovation: we need to pay doctors to reward the creation of new inventions so that better treatments are devised However, the Full Court of the Federal Court in Anaesthetic Supplies v Rescare rejected the human treatment rule as a ground for refusing a patent application (although the patent was ultimately rejected on other grounds). Lockhart & Wilcox JJ: rejected assertions that it might be generally inconvenient for a method of treating humans to be granted patent protection and that at best it was for the legislature to deny (which they chose not to do in 1992). Although Sheppard J did dissent on this issue, relying on previous decisions that allowing monopolies over beneficial treatment techniques and processes was ‘generally inconvenient’. EXAMPLE Anaesthetic Supplies v Rescare Facts: Patent over a device and method for dealing with sleep apnoea (snoring that prevents sleeping properly and can lead to heart problems). Held: Patent failed on other grounds – although court appeared to accept that it was patentable. Sheppard J dissent: following the reasoning from previous decisions that allowing monopolies over beneficial treatment techniques and processes was ‘generally inconvenient’. However methods of treating the human body are now clearly patentable: Bristol Myers Squibb v F H Faulding. The court gave two primary reasons: 1. Problem from a public policy viewpoint with drawing a logical distinction between a product for treatment of human body, but denying patentability of a method: Black CJ & Lehane J 2. Parliament had not expressly excluded treatment method patents when drafting the Patents Act 1990: Finkelstein J Applying this reasoning in Bristol, here, ______________. EXAMPLE Bristol Myers Squibb v F H Faulding Facts: New and inventive method of administration of an anti-cancer drug – drug itself could not be patentable because it is naturally occurring (highly toxic substance with significant side effects). However method of using the drug (the dosage size, number of doses per day etc) was the subject of the patent application. Bristol had funded research; Faulding marketed the drug in Australia – included an information guide on the method of administering the drug (infringed patent?). Held (FC – Heerey J): not a suitable subject for the grant of a patent Held (FCFCA): a method of medical treatment of the human body is patentable; two reasons: 1. Problem from a public policy viewpoint with drawing a logical distinction between a product for treatment of human body, but denying patentability of a method 2. Parliament had not expressly excluded treatment method patents when drafting the Patents Act 1990 (However application failed because of a lack of novelty) Here, applying the reasoning in NRDC: • There is a vendible product – that is produces (e.g. cancer treatment) which is useful (broad definition) o ‘vendible’ points to utility and practical affairs o ‘product’ is taken to mean every end produced • This is a useful art not fine art – it is a form of technology – is serves the purpose of (purpose e.g. treating cancer) • It produces a new and useful result of specific practical application and is thus not just an idea (e.g. treatment of cancer) • It has economic significance and a commercially useful effect (e.g. someone would pay for it/can be sold/used for profit) • It is not a mere discovery, idea, scientific theory or law of nature – it is a practical method of _______. There is some question about whether there is an industrial/commercial trading character about the process. However arguably it cane be commercialised by _____(royalty fees etc.) IF COMPUTER SOFTWARE: WHY PATENT instead of COPYRIGHT? Copyright protects the copying of software (e.g. copying executable or machine readable code or copying the source code that humans can read). The advantage that patents have over copyright is that the patent can protect the end result that the computer software achieves, providing protection that copyright does not offer: Powerflex v Data Access at 126. I.e. stop someone from looking at product and working out how to achieve the same result. In the US computer software is clearly patentable: Diamond v Diehr; AT&T Corp v Excel. EXAMPLE Diamond v Diehr (US CASE) Held: Mere application of a mathematical equation to data by computer program was patentable (added rubber and curing moulds) – even though no useful effect of the equation by itself, the process of application to data was useful. EXAMPLE AT & T Corp v Excel Communications (US CASE) Facts: Bare machine executed process - data was put in, then modified/transformed and data out Held: Patentable. In Australia, one difficulty in patenting computer technology is that computer programs may in some instances be regarded as merely ‘reciting a mathematical algorithm’ which cannot be protected by patent: Re Application by Honeywell Bull. Although if the formula is applied to achieve an end, a novel and inventive method of producing that end is entitled to the protection of the patent laws: IBM v Comm of Patents. Here, the formula is applied to achieve an end, namely _________(e.g. the creation of a curve on the computer screen_____. EXAMPLE IBM v Commissioner of Patents Facts: Method of creating a improved visual image of a curve on a computer screen by imbedded mathematical algorithm - more than a mathematical algorithm/formula or pleasant image which is not protected by Australian patent law Held: When the formula is applied to achieve an end, a method of producing that end, which is novel and inventive, is entitled to the protection of the patent laws. The program was an artificial state of affairs having economic significance or a commercially useful effect as it had practical application and produced a practical result. In order to be patentable, the program must be an artificial state of affairs with economic significance or a commercially useful effect: NRDC; CCOM v Jiejing approved in Data Access Corp v Powerflex. N.B. No need for a physical aspect just software: CCOM. Here, ____________ (e.g. practical effect was the operation with a computer to create Chinese characters on the screen – which clearly has economic significance). EXAMPLE CCOM v Jiejing Facts: Chinese characters are broken down into the ‘strokes’ of a character in a particular order – program involving the use of a computer to assemble text in Chinese characters. Held: Patentable subject matter as it was an artificial state of affairs with practical significance (used the reasoning from NRDC) - the program had a physical effect because it operated on a computer. Applying the other aspects of the NRDC decision: • There is a vendible product – it produces (e.g. a curve on the screen) which is useful (broad definitions) o ‘vendible’ points to utility and practical affairs o ‘product’ is taken to mean every end produced • This is a useful art not fine art – it is a form of technology – is serves the purpose of (e.g. creation of a curse on screen) • It produces a new and useful result of specific practical application and is thus not just an idea (e.g. applied in creating curved image) It is not a mere discovery (or idea/scientific theory/law of nature) IF PHARMACEUTICALS: Pharmaceuticals are patentable subject matter as they are clearly a manner of manufacture: Wellcome Foundation v Comm of Patents. Here, applying the reasoning in NRDC this patent could be granted because: • There is a vendible product – that is produces (e.g. drug) which is useful (broad definitions) o ‘vendible’ points to utility and practical affairs o ‘product’ is taken to mean every end produced • This is a useful art not fine art – it is a form of technology – is serves the purpose of (e.g. treating illness) • It produces a new and useful result of specific practical application and is thus not just an idea (e.g. applied in treating illness) • It has economic significance and a commercially useful effect (e.g. can be sold/used for profit) • There is an industrial/commercial trading character about the process (e.g. someone would pay for it/can be commercialised) • It is not a mere discovery (or idea/scientific theory/law of nature) Additionally it is possible to extend the patent term of standard patents for pharmaceutical products of up to 5 years, to compensate for the time required to go through clinical trials and obtain approvals: s70-79A. IF drug only made from known ingredients: However, the pharmaceutical product must be more than a mere mixture of known ingredients used for medicinal or food purposes, whether for animals or humans or internal or external use: s50(1). EXAMPLE Wellcome Foundation v Commissioner of Patents Facts: Patent over written instructions on the packaging of a pharmaceutical substance Held: Idea of patenting written instructions on a drug container is not allowed - however, pharmaceuticals (i.e. the drug itself) is clearly patentable. OTHER EXCLUDED MATTERS: There are also, a number of additional restraints imposed by section 6 SoM 1624 Namely: IF contrary to law: Contrary to law: can deny / discretion: s50(1)(a) IF generally inconvenient: Two possible interpretations as a social policy lever: 1. Which can be used by the courts to deny when the invention is not new or novel in the way that it would be inconvenient to existing traders for a monopoly to be granted to someone; or 2. Similar to the Rolls Royce application, where pilots shouldn’t be worrying about infringing just by controlling the plane – because of the danger to the public involved if this was allowed to occur (N.B. could analogise to surgeons) Here, ____________. 2. NOVELTY To determine whether (invention) is novel, need to compare it to the prior art base existing immediately before the priority date: s7. When is the Priority Date? IF PROVISIONAL application: (optional application) Here, (inventor) has filed a provisional application, this will create a priority date, on the day it is filed. Here the priority date is (date filed). • Can be lodged before the invention is refined/complete and creates a priority date. • Includes a description of the nature of the invention to be described. IF fail to lodge complete application within 12 months: Here, (inventor) has failed to file a complete patent application within 12 months of filing the provisional application. At this stage the invention will no longer be novel or inventive (for anyone) because it has fallen into the public domai
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