Patentability of Known Technology


For a product or process to be patentable in Australia, it is commonly understood that it must be novel (new), possess an inventive (non-obvious advantage over similar technology) and be industrially useful. However under some circumstances previously known technology can be patentable. Although the majority of inventions build on previously known technology, they commonly do so to create a new product or process. If the product or process itself is known then it is often considered not patentable.

The below is a summary of situations where known products or processes can be used to gain valid patent protection in their own right.

New use of a known product

If the use of the product (such as a device or substance) is previously unknown and provides an unexpected advantage then that use can be patentable. Here it is the method of use which is patentable and not the product itself. However, if the known product is used for a known purpose in an analogous circumstance, then that use, although new, is generally not inventive and therefore likely not patentable for the purposes of a standard patent. For example, a second medical use of a known compound may be patentable where the known substance is effective in treating a known condition/disease. Aspirin was previously known for relieving pain (such as headaches) but was subsequently discovered to also be effective as an anti blood clotting therapy in low doses in humans.

New combinations

If the combination works together to produce a new and improved result then that combination can be patentable. Here it is the working interrelationship which is important. If there is synergy between the known components or process steps rather than an additive effect then the new combination is likely inventive and therefore patentable. An example is a combination therapy for animals produces an improved result over the results achieved with the individual substances themselves. However, if each component of the new combination works independently of the other component(s) and merely performs its own function (such as a gas burner and hob)  then that combination is likely not inventive or patentable for the purposes of a standard patent.

Selection invention

Where a subset of members of a larger known class of products is recognised to possess a substantial advantage over the other class members then that subset can be patentable for the new use. For example, many patented inventions in the chemistry field result from the discovery that a specific subset of a wider chemical class of compounds make a composition perform well for a particular use. In this situation the other members of the wider group do not possess the advantage.

For more information on determining patentable subject matter, please don’t hesitate to contact us.

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