31 August 2011

Tilting at Windmills?

A meeting I had the other day prompted me to write this post. My prospective client was a bright young man who appeared to have done quite a bit of research himself. His source was the IP Australia website. There's no doubt that IP Australia's website is extremely useful, both for practitioners and inventors.

But let us go back to the principles of our Patents Act. As you will see, there are clearly two sides to the patent system. One side is the government, represented by IP Australia. The other side is the Applicant, being that person or organisation attempting to acquire a granted patent.

Why this need for two sides? It's important to understand the answer. The patent system is based on a quid pro quo. The government will give the inventor/s the right to exclude all other Australians from exploiting the invention for the life of the patent. In return, the inventor/s must give sufficient information to the public so that, when the patent expires, the public can exploit the invention. The instrument for enabling this quid pro quo is the patent specification.

It is the role of IP Australia to investigate whether or not the government should enter into the quid pro quo. It is not the role of IP Australia to enable the quid pro quo. In other words, IP Australia is not obligated to act in favour of the inventor/s. On the contrary, IP Australia's role is simply that of a proposed party to an agreement. The fact that IP Australia ostensibly encourages the filing of patent applications is contrary to the spirit of the Patents Act, even though it is admirable.

So you need to bear in mind that dealing with IP Australia yourself is akin to entering into an agreement with another party without professional assistance. Of course, this sounds like a plug for the profession and perhaps you have reason to be jaundiced. But please at least phone around and do some homework before dismissing the option of consulting a patent attorney.

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