By Spruson and Ferguson Patent and Trade Mark Attorneys
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The matter then proceeds to a Patent Office Hearing. An appeal to a prescribed Court from a decision of the Patent Office is possible. It is worth noting that even when an opposition is withdrawn, the Commissioner can take into account the evidence on file and conduct a bar-to-sealing action. 4 Sealing After the acceptance of an application and in the absence of a successful opposition, sealing occurs within 6 months of the date of advertisement of the acceptance of the application, and the patent is granted or issued.
Discovery An invention as opposed to a discovery or idea is more than a mere addition to human knowledge. The difference between an invention and a discovery was described in Reynolds v Herbert Smith & Co Ltd 10 as follows: “Discovery adds to the amount of human knowledge, but it does so only ... by disclosing something ... Invention also adds to human knowledge, but not merely by disclosing something. ” Thus, a typical invention involves the practical application of a discovery or an idea so as to provide a solution to a problem or need.
In Australia, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, whether that knowledge is considered separately or together with a single piece of publicly available prior art information A discussion of relevant case law relating to inventive step is set out in Appendix IV.
Biotechnology Intellectual Property Manual by Spruson and Ferguson Patent and Trade Mark Attorneys