Raising the Bar on Australian patent drafting standards


1 min read

The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 significantly enhanced Australian patent standards, aligning them with major international benchmarks, particularly those of the US and EU. This Act particularly emphasises the quality of patent specifications, ensuring that the scope of the patent monopoly claimed is supported by comprehensive and clear disclosure. Australian patent attorneys, already versed in drafting to international standards, must now apply these stringent criteria even for patents only filed in Australia.

Key reforms introduced include the necessity for complete specifications to clearly and fully disclose inventions so a skilled person in the relevant field can execute them. This concept, known as 'enablement', requires detailed teaching in the filed specification or earlier priority documents. The 'support' requirement, replacing the older 'fair basis' test, dictates that claims must align with the description and not exceed its justification. Additionally, there is a heightened focus on 'utility', particularly in the chemical, pharmaceutical, and biotechnology sectors, to prevent speculative claiming.

These changes, applicable to all patent applications filed after April 15, 2013, and earlier applications not examined by this date, mean that practitioners must diligently ensure compliance with these enhanced standards. This shift impacts international patent filings and redefines the scope and depth of claims allowable in Australian patents, marking a significant step in the evolution of patent law in the country.