Patents Act 1990
The Patents Act 1990 governs the grant and enforcement of patents in Australia. The Act provides for two types of patents: standard patents (for inventions that are novel, involve an inventive step, and are industrially applicable) and innovation patents (a lower-threshold protection for incremental innovations, phased out in 2021). A standard patent provides protection for up to 20 years from the filing date (25 years for pharmaceutical substances). The Act establishes the patent application and examination process, the grounds for revocation, the rights conferred by a patent, and remedies for infringement. IP Australia is the administering agency. The Act implements Australia’s obligations under the Patent Cooperation Treaty and the TRIPS Agreement.
Legal area: Intellectual property law protects creations of the mind, including copyright, patents, trade marks, and designs.
Year enacted: 1990
Full text: https://www.legislation.gov.au/Details/C1990A00083
Key Provisions
- Section 18: Patentable inventions (novelty, inventive step, industrial application)
- Section 7: Novelty and inventive step (prior art base, person skilled in the art)
- Section 40: Specification requirements (full description, best method, claims)
- Part 3: Examination and grant
- Section 117: Infringement (exploitation of the invention)
- Section 120: Relief for infringement (injunctions, damages, account of profits)
- Part 8: Crown use of patented inventions
- Section 138: Revocation of patents (grounds for revocation)
Significance
The Patents Act 1990 is the cornerstone of the Australian patent system. The Act’s inventive step standard requires that the invention not be obvious to a person skilled in the relevant art. The ‘raising the bar’ amendments (2012-2013) increased the stringency of patentability requirements in response to concerns about the quality of granted patents. The Act’s provisions on pharmaceutical patents interact with the Pharmaceutical Benefits Scheme (PBS) and the evergreening provisions (section 26C) restrict strategic extensions of patent term.