One thing that I admire about our Patents Act is the fact that what constitutes patentable subject matter has been left to our courts to interpret. Most of our judiciary are brighter than our lawmakers. Also, technology is shifting and changing. Ongoing tests of what is patentable and what not by our courts is fluid and is probably the only way to keep up with technology.
So, it was with some distaste that I noticed that the recent ACIP Report recommends that the Patents Act be changed to codify the principles of inherent patentability. The wording from the key points of the report is "the recommendations propose a restatement of the law in words that are currently applied by the courts". It seems to me that ACIP would have the test frozen in time. In 15 to 20 years' time will the test still be relevant?
ACIP believes that the Act should codify the principles as developed by the High Court in the NRDC case. So now we'll have a situation where the High Court will have to assess how the authorities have adopted the principles of the NRDC case instead of possibly re-assessing or even over-turning that case. Clearly, this limits the discretion of the High Court to make changes in step with changing technology.
Not satisfied with that, ACIP also recommends a general exclusion that precludes "the patenting of inventions the commercial exploitation of which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public." At the moment, the courts only have to deal with what is generally inconvenient. So again, ACIP proposes to limit the High Court's discretion. In any event, how do we deal with "wholly offensive"? As with technology, cultural norms are constantly changing. We need a fluid system to handle those changes, not codification.