Commonwealth Consolidated Acts Commonwealth Consolidated ActsIn this Act, unless the contrary intention appears:
"application" , in Chapter 15, means a patent application, and includes a relevant international application.
"approved form" means a form approved by the Commissioner for the purposes of the provision in which the expression appears.
"associated technology" has the same meaning as in the Safeguards Act.
"Australia" includes each external Territory.
"Australian continental shelf" means the continental shelf adjacent to the coast of Australia (including the coast of any island forming part of a State or Territory).
"Australian Register of Therapeutic Goods" means the register maintained under section 9A of the Therapeutic Goods Act 1989 .
"authority" , in Chapter 15, has the same meaning as in the Safeguards Act.
"basic application" means an application for protection in respect of an invention, being an application made in a Convention country.
"Budapest Treaty" means the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure signed at Budapest on 28 April 1977, as that treaty is in force for Australia from time to time, together with the Regulations annexed to that treaty, as those Regulations are in force for Australia from time to time.
"certified" , in respect of an innovation patent other than in section 19, means a certificate of examination issued by the Commissioner under paragraph 101E(e) in respect of the patent.
"claim" means:
(a) when used as a noun in relation to a patent--a claim (including a dependent claim) of the specification relating to the complete application on which the patent was granted; and
(b) when used as a noun otherwise than in relation to a patent--a claim (including a dependent claim) of a complete specification; and
(c) when used as a verb--to claim in a claim (including a dependent claim) of a complete specification.
"commencing day" means the day on which this Act commences.
"Commissioner" means the Commissioner of Patents.
"compensable person" means:
(a) in relation to a patent acquired by the Commonwealth--the patentee and any person recorded in the Register as having an interest in the patent; and
(b) in relation to an invention that is the subject of a patent application and is so acquired--the nominated person in relation to the application.
"complete specification" means (other than in section 116) a specification filed in respect of a complete patent application or, if the specification has been amended, the complete specification as amended.
"compulsory licence" means a licence granted under an order made under section 133.
"Convention applicant" , in relation to a basic application, means a person (or a body of persons, whether incorporated or not) who:
(a) has made the basic application; or
(b) is the assignee of that applicant; or
(c) would, on the grant of a patent on that application, be entitled to have the patent assigned to the person; or
(d) is the legal representative of a person mentioned in paragraph (a), (b) or (c); or
(e) has the consent of a person mentioned in paragraph (a), (b), (c) or (d) to make a Convention application based on that basic application.
"Convention application" means a patent application made under Part 2 of Chapter 8.
"Convention country" means a foreign country declared by the regulations to be a Convention country for the purposes of this Act.
"deposit requirements" means the requirements specified in paragraphs 6(a) to (d), inclusive.
"depositary institution" means a body or institution that receives, accepts and stores micro-organisms and furnishes samples of micro-organisms.
"Deputy Commissioner" means a Deputy Commissioner of Patents.
"Designated Manager" has the meaning given by section 200A.
"Director" means the Director of Safeguards.
"eligible person" , in relation to an invention, means a person to whom a patent for the invention may be granted under section 15.
"employee" means a person, other than the Commissioner or a Deputy Commissioner, who:
(a) is a person engaged under the Public Service Act 1999 and is employed in the Patent Office; or
(b) is not such a person but performs services, in the Patent Office, for or on behalf of the Commonwealth.
"examination" means:
(a) in relation to a patent request and a complete specification relating to a standard patent--an examination of the request and specification under section 45, or a modified examination of the request and specification under section 48; or
(b) in relation to an innovation patent--an examination of the complete specification relating to the patent under section 101B.
"exclusive licensee" means a licensee under a licence granted by the patentee and conferring on the licensee, or on the licensee and persons authorised by the licensee, the right to exploit the patented invention throughout the patent area to the exclusion of the patentee and all other persons.
"exploit" , in relation to an invention, includes:
(a) where the invention is a product--make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or
(b) where the invention is a method or process--use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.
"Federal Court" means the Federal Court of Australia.
"file" means file with the Patent Office.
"foreign aircraft" means an aircraft registered in a prescribed foreign country.
"foreign land vehicle" means a land vehicle owned by a person ordinarily resident in a prescribed foreign country.
"foreign patent office" means an office, organisation or other body that may grant protection in respect of an invention in a foreign country.
"foreign vessel" means a vessel registered in a prescribed foreign country.
"formalities check" means, in respect of an application for an innovation patent, the checking process undertaken under section 52 using the process set out in the regulations.
"infringement proceedings" means proceedings for infringement of a patent.
"innovation patent" means letters patent for an invention granted under section 62.
"interested party" , in relation to a patent application, means the applicant or a joint applicant, or a person who claims to be entitled to the grant of a patent on the application, either alone or jointly with another person.
"international application" has the same meaning as in the PCT.
"international depositary authority" has the same meaning as in the Budapest Treaty.
"international filing date" , in relation to an international application, means:
(a) the date given to the international application as its international filing date under Article 11 of the PCT; or
(b) if that date is revised under Article 14 of the PCT--that international filing date as so revised.
[See also section 10]
"invention" means any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies, and includes an alleged invention.
"legal practitioner" means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory.
"legal representative" , in relation to a deceased person, means a person to whom probate of the will of the deceased person, letters of administration of the estate of the deceased person, or any other similar grant, has been granted, whether in Australia or anywhere else, but does not include such a person who, under the terms of the grant, is not entitled to do an act in relation to which the expression is used.
"licence" means a licence to exploit, or to authorise the exploitation of, a patented invention.
"main invention" has the meaning given in section 81.
"modified examination" , in relation to a patent request and complete specification relating to an application for a standard patent, means an examination of the request and specification under section 48.
"nominated person" means the person identified in a patent request as the person to whom the patent is to be granted.
"non-infringement declaration" means a declaration mentioned in subsection 125(1).
"Official Journal" means the official journal mentioned in section 222.
"patent" means a standard patent or an innovation patent.
"patent application" means an application for a standard patent or an application for an innovation patent.
"patent area" means:
(a) Australia; and
(b) the Australian continental shelf; and
(c) the waters above the Australian continental shelf; and
(d) the airspace above Australia and the Australian continental shelf.
"patent of addition" means letters patent for an invention granted under Chapter 7 and includes, for the purposes of section 25, a patent of addition that has become an independent patent under section 83.
"Patent Office" means the Patent Office established under this Act.
"patent request" means a request for the grant of a patent to a nominated person.
"patentable invention" means an invention of the kind mentioned in section 18.
"patented process" means a process in respect of which a patent has been granted and is in force.
"patented product" means a product in respect of which a patent has been granted and is in force.
"patentee" means the person for the time being entered in the Register as the grantee or proprietor of a patent.
"PCT" means the Patent Cooperation Treaty signed at Washington on 19 June 1970, as that treaty is in force for Australia from time to time, together with the Regulations annexed to that treaty, as those Regulations are in force for Australia from time to time.
"PCT application" means an international application:
(a) in which Australia is specified as a designated State under Article 4(1)(ii) of the PCT; and
(b) which has been given an international filing date.
"permit" , in Chapter 15, has the same meaning as in the Safeguards Act.
"pharmaceutical substance" means a substance (including a mixture or compound of substances) for therapeutic use whose application (or one of whose applications) involves:
(a) a chemical interaction, or physico-chemical interaction, with a human physiological system; or
(b) action on an infectious agent, or on a toxin or other poison, in a human body;
but does not include a substance that is solely for use in in vitro diagnosis or in vitro testing.
"prescribed court" means the Federal Court, the Supreme Court of a State, the Supreme Court of the Australian Capital Territory, the Supreme Court of the Northern Territory or the Supreme Court of Norfolk Island.
"prescribed depositary institution" means:
(a) an international depositary authority, whether in or outside Australia; or
(b) any other depositary institution in Australia that is prescribed for the purposes of this paragraph.
"prior art base" means:
(a) in relation to deciding whether an invention does or does not involve an inventive step or an innovative step:
(i) information in a document that is publicly available, whether in or out of the patent area; and
(ii) information made publicly available through doing an act, whether in or out of the patent area.
(b) in relation to deciding whether an invention is or is not novel:
(i) information of a kind mentioned in paragraph (a); and
(ii) information contained in a published specification filed in respect of a complete application where:
(A) if the information is, or were to be, the subject of a claim of the specification, the claim has, or would have, a priority date earlier than that of the claim under consideration; and
(B) the specification was published after the priority date of the claim under consideration; and
(C) the information was contained in the specification on its filing date and when it was published.
[Note: For the meaning of document see section 2B of the Acts Interpretation Act 1901 . ]
"prior art information" means:
(a) for the purposes of subsection 7(1) --information that is part of the prior art base in relation to deciding whether an invention is or is not novel; and
(b) for the purposes of subsection 7(3) --information that is part of the prior art base in relation to deciding whether an invention does or does not involve an inventive step; and
(c) for the purposes of subsection 7(5) --information that is part of the prior art base in relation to deciding whether an invention does or does not involve an innovative step.
"Professional Standards Board" means the Professional Standards Board for Patent and Trade Marks Attorneys established by section 227A.
"prohibition order" means an order under section 173.
"provisional specification" means a specification filed in respect of a provisional patent application.
"receiving Office" has the same meaning as in the PCT.
"re-examination" means:
(a) in relation to a complete specification relating to an application for a standard patent--the re-examination of the complete specification under Chapter 9; and
(b) in relation to an innovation patent--the re-examination of the innovation patent under Part 2 of Chapter 9A.
"Register" means the Register of Patents mentioned in section 186.
"registered" , in relation to a patent, means entered in the Register of Patents.
"registered patent attorney" means a person registered as a patent attorney under this Act.
"relevant authority" means:
(a) in relation to the exploitation of an invention by or for the Commonwealth--the Commonwealth; and
(b) in relation to the exploitation of an invention by or for a State--that State.
"relevant international application" , in Chapter 15, means an international application in relation to which the Patent Office is the receiving Office (even if Australia is not specified in the application as a designated State under Article 4(1)(ii) of the PCT).
"relevant proceedings" , in relation to a patent, means court proceedings:
(a) for infringement of the patent; or
(b) for revocation of the patent; or
(c) in which the validity of the patent, or of a claim, is in dispute.
"rules relating to micro-organisms" means such provisions of the Budapest Treaty, and such provisions made by or under regulations made under section 228, as are applicable.
"Safeguards Act" means the Nuclear Non-Proliferation (Safeguards) Act 1987 .
"sealed" means sealed with the seal of the Patent Office.
"specification" , in relation to an international application, means the description, claims and drawings contained in the application.
"standard patent" means letters patent for an invention granted under section 61.
"State" , in Chapter 17, includes the Australian Capital Territory, the Northern Territory and Norfolk Island.
"Statute of Monopolies" means the Imperial Act known as The Statute of Monopolies.
"supply" includes:
(a) supply by way of sale, exchange, lease, hire or hire-purchase; and
(b) offer to supply (including supply by way of sale, exchange, lease, hire or hire-purchase).
"Territory" means a Territory in which this Act applies or to which this Act extends.
"therapeutic use" means use for the purpose of:
(a) preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons; or
(b) influencing, inhibiting or modifying a physiological process in persons; or
(c) testing the susceptibility of persons to a disease or ailment.
"this Act" includes the regulations.
"work" , in relation to a patented invention, means:
(a) where the invention is a product--make or import the product; or
(b) where the invention is a method or process--use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.
1952 Act means the Patents Act 1952 .
1989 Amending Act means the Patents Amendment Act 1989 .