The word “innovation” has all of a sudden become a buzz word among Australia’s politicians. It is even more remarkable to note how quickly the message has changed since Malcolm Turnbull became Australia’s fifth Prime Minister in six years. We are hopeful that the recent focus on innovation is not just another way for politicians to define themselves and their opponents. Whilst, it will be sometime before policy details of the government’s “innovation agenda” are announced, it appears that innovation policy is finally on the economic agenda in Australia.
At Spruson & Ferguson, a good proportion of our clientele includes small and medium sized businesses and we always try to involve ourselves as team players and give these businesses the best possible chance of succeeding in the market place and becoming Australia’s next success story. Working with such enterprises gives us a unique perspective on issues that are affecting innovation in our great country. Given that Australia prides itself on providing a robust intellectual property protection system, there are important considerations about the patent system which should be taken into account while formulating the “innovation agenda” in the coming months.
In order to expand the existing Australian marketplace for technology, the Australian patent system should play a key part and it is important that new and emerging areas of technology and knowledge are addressed by our patent system. In recent times, Australia’s stance on patentability of subject matter like software, genetics, and business methods has been rigged with uncertainty and requires clarification if not complete overhaul.
A fitting example is last week’s High Court decision (D’arcy v Myriad Genetics Inc. & Anor [2015] HCA 35) in which the High Court reversed the decisions of six Federal Court judges and deemed isolated genetic material to be ineligible for patentability. This decision is likely to impact the patentability of isolated biological materials in the future and as a result be detrimental in attracting investment in important areas of technology like Biotechnology.
In the same manner, there has been long-standing controversy surrounding patentability of business methods and software in Australia. In a relatively recent decision, Konami Gaming Inc. v Aristocrat Technologies Australia Pty Ltd [2015] FCA 92; 110 IPR 524, the Federal Court of Australia in respect of a computer-implemented invention deemed such inventions to constitute patentable subject matter. However, in another decision (Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 (10 November 2014), late last year, the Federal Court on Appeal deemed that a computer implemented financial-method was deemed to be not patentable.
Patentable subject matter eligibility is a complicated legal concept and a number of my colleagues have provided excellent analyses of some of the more recent decisions and demonstrated how our honourable Federal Court and High Court judges are grappling with application of archaic IP laws to modern areas of technology like genetics and software. Uncertainty surrounding patentability of biological material and software in Australia is not helpful and is likely to damage confidence in Australia’s IP system. Such lack of clarity in patentability of subject matter like biological material and software will also negate prospects of attracting overseas investment in fostering innovation in our great country.
Therefore, we believe the Australian government should consider the issues of patentable subject matter eligibility as a matter of priority. A robust policy that promotes innovation in key areas of technology like biotechnology, software and business methods must form an important part of the government’s “innovation agenda”.
If you have any questions on the above please don’t hesitate to contact us.