A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent [this is more properly expressed as the right to exclude others from commercially exploiting the invention]. This is not automatic - you must apply for the rights of ownership to your invention. Kambrook, the electrical components manufacturer learned this the hard way when it did not protect its new power board; the product was so successful it was quickly copied by a range of competitors without any return to the original inventor.
There are two types of patents in Australia:
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A standard patent gives long-term protection and control over an invention for up to 20 years. |
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An innovation patent is a relatively fast, inexpensive protection option, lasting a maximum of 8 years. The innovation patent replaced the petty patent on 24 May 2001. |
The IP Australia web site provides some examples of patents that have been granted in Australia.
A number of overseas cases deal with Patents and plant material and it is worth referencing 2 key ones:
- Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902rt - this deals with the strict liability associated with the breach of patent law; Schmeiser had patented canola on his property which he alleged had come from other people's property. However he was still found to have infringed due to the quantity in his crop, his knowledge of its presence and he did not have a valid defence.
- JEM Ag Supply v Pioneer Hi-Bred International Inc (2001) 534 US 124 which confirmed that newly developed plant breeds fall within the definition of patentable subject matter, and neither the Plant Patents Act (US) nor the Plant Variety Protection Act (US) limits the scope.
One of the differences between PBR and patents is that the PBR Act specifically provides an exclusion to allow the use of a protected variety for further research and plant breeding (See Section 3.9.2 Exemptions and Restrictions).
Go to Section 2.2: Trade Marks
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