Issues Magazine

Scientific Innovation in Australia

By John Cusick

Australians can be proud of inventions like the Victa lawn mower and the cochlear implant, but how does our scientific innovation fare in a global sense? Changes to Australian patent law aim to help researchers and innovators achieve success in their own country.

In broad terms, scientific innovation in Australia depends on a strong scientific research community and the development of new ideas that can be commercially exploited. A key factor to scientific innovations is the ability for scientists to make money from their research so that they can conduct further research and development.

In Australia, the main method employed by researchers to protect and to commercialise their research is to obtain patent protection. Essentially, a patent is a special type of protection that is provided by the federal government to inventors that (subject to any prior rights owned by another person) allows the inventor to exploit their invention for a set period of time without anyone else being able to exploit the invention during this time. What this means is that where a scientist obtains patent protection for their research, then no other scientist will legally be able to make, use, sell or distribute the same invention.

So, clearly the patents system in Australia helps to support scientific innovation by encouraging scientists to conduct research and development by enabling them to exploit their invention and make money from it. It is important that we protect scientists and their research to ensure that Australia keeps at the forefront of worldwide scientific development. We want to make sure that not all of our top scientists go overseas to work; rather, we want them to develop their research interests in Australia.

It has been suggested that the success of scientific innovation in Australia is strongly affected by the globalised economy and the globalisation of innovation. Despite this, the statistics regarding scientific innovation in Australia are alarming.

• In 2008, Australia was producing just 2% of the world’s research.

• In 2007, there was only one patent application per $5 million invested in research and development.

• In 2008, only 9.14% of patents in force in Australia were owned by Australians.

What Is the Current Patent System in Australia?
At its most basic level, a patent is a special right that is granted by the government that allows an inventor to exploit their invention (which means that the inventor can make, sell, distribute and further develop their invention). A patent can be granted by the government for a number of things, including devices, substances, methods or processes, provided that whatever is being patented is new, inventive and useful.

To receive the protection of a patent it is important for the researcher to apply to the government for patent protection – it is not automatic protection. If the inventor fails to apply for protection then someone else may use their invention without their authority and without paying them for the use of the invention.

There are two types of patents in Australia:

• a standard patent, which gives the researcher long-term protection and control over their invention for up to 20 years. However, if the invention is a new pharmaceutical drug then the term of standard patent can be up to 25 years; and

• an innovation patent, which is a relatively fast, inexpensive protection option lasting a maximum of 8 years.

Although patents are very important for researchers because they allow them to exploit their research and make money from their research, in return the researcher must share their research with the public by providing a full description of how their invention works. This allows others to look at and use this information to allow further research to be conducted so that new developments can be made.

Once a patent expires, other researchers are able to exploit a product or a process that was previously protected by the patent. For example, a competing researcher will then be able to make and use the invention that could previously only be made and sold by the patentee. This is very commonly seen with patents for pharmaceutical drugs: after the patent has expired, competing companies produce “generic medicines” that are identical to the original medicine. However, because the competitors have not had to pay for the research and development for the medicine they can make the medicines more cheaply.

Historically Australians have been prolific inventors and have been responsible for some very important inventions that have changed the world (see boxes). The inventions have allowed the inventors to make a great deal of money, although sometimes these inventors have not protected their inventions properly and the benefits from these inventions have not stayed in Australia.

One very important aspect of the patent system in Australia is that once the government has granted the researcher a patent for their invention then they can enforce their rights. If anyone else tries to invent the same thing or to sell a product that is similar to the patented invention then the researcher can commence court proceedings to enforce their patent rights and to ensure that their invention is not used by someone else without their authority.

Making Australia’s Patent System Better
Despite the fact that the Australian government has a system for protecting patents in Australia, some scientists believe that the system is not strong enough, and as a result they are moving overseas. To help stop this and to further assist with scientific innovation in Australia, the government has proposed to make some changes to Australia’s patent system to help keep important scientific research in Australia.

The changes the government recently proposed to make to the patent system will amend a number of Acts of Parliament, with the end result that the patent system in Australia will be more research-friendly. The changes proposed aim to:

• raise the quality of patents granted in Australia;

• allow easier access to researchers who want to conduct experiments on inventions that are patents to allow bigger and better inventions to be made;

• make the process for researchers to make a patent application much easier; and

• allow researchers to enforce their patents more easily.

Raising the Quality of Patents Granted in Australia
The amendments that the government proposes to make to the patent system are designed to strengthen the key tests for whether an invention can be patented, and they will also make the method by which the government assesses patents more rigorous. Both of these types of amendment will ensure that the threshold for getting an invention patented in Australia are not too low and that researchers with existing inventions are able to keep exploiting and earning money from their research.

The amendments are designed to raise the quality of patents granted in Australia by:

• ensuring that patents are only granted for inventions that add significantly to previous knowledge that other researchers have developed;

• bolstering the requirements for patents so that the invention does what it is claimed to do, and also that the invention contains sufficient information to allow another researcher to perform or make the invention;

• ensuring that the public (and other researchers) receive sufficient information about the invention to allow further research about and development of the invention; and

• giving the government more power when assessing applications for patent protection to ensure that only those patents of a high standard are given patent protection.

The amendments raise the bar for new inventions by removing a number of the restrictions on the information and background knowledge taken into account when assessing whether an application is sufficiently inventive to justify a patent. The amendments do this in a number of ways, but essentially they ensure that when assessing new inventions, more information and other inventions can be looked at to assess whether the invention is both novel (i.e. that no one else has developed the same invention) and inventive (i.e. that the new invention is better or an advance on existing inventions).

One very important amendment that the government will be making to the patent system in Australia relates to sufficiency of information. Information disclosed to the public at the time that an invention is patented should be sufficient for someone else to make or use the invention. This is very important because it allows other researchers to obtain and use the information about the patent so that they can conduct further research and develop the invention further.

Easier Access to Information about Patents for Researchers
The amendments that the government will make to the patent system will introduce a special rule that allows scientific researchers to use a patented invention that is owned by another researcher if they are going to use the invention to conduct experiments to make the invention better. This new rule will apply to tests, trials and procedures that a scientist or researcher undertakes as part of discovering new information or testing a principle about an existing invention.

Prior to these amendments, if a researcher used a patented invention without the permission of the owner of the patent then the researcher could be sued and could be forced to pay a lot of money to the owner of the invention. As a result, many researchers could not continue to develop inventions to make them better, and this slowed down the rate at which new inventions were being developed in Australia.

It is hoped that this amendment will help to foster scientific innovation in Australia. This is important because it allows new researchers to develop inventions and make them better, which over time means that new and amazing inventions will be made that will help make Australia a “smart country”.

Genetic and Gene Research
An exciting development as a result of the amendments and other recent changes to the patent system in Australia is that now there is some scope for scientists and researchers to undertake a lot of new research within the gene and biological materials sphere (e.g. by doing research on new proteins that could be used as medicines). This is a massive area of scientific innovation and an area where many scientists and researchers work. By allowing further research on gene and biological material patents, the potential for new inventions looks very exciting.

Exciting Times
The intention of the amendments made by the government is to give broad and clear protection to research and experimental activities in order to maximise the potential for research and scientific innovation in Australia.

The new amendments to the patent system in Australia mark the beginning of a very exciting time for scientists in Australia as now they will be better supported by the government and be able to make more money from their research and inventions. The future for new scientists looks very bright and the potential to work as an internationally recognised scientist is great.