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Bio Technology : October 2009
38 Australasian BioTechnology Volume 19 • Number 3 • October 2009 AusBioFEATURE By John Dower, Freehills You don't need to be inventive to get a patent It may come as a surprise to many that a new full Federal Court ruling about plastic posts has confirmed that invention is not necessary for an innovation patent and as a result Australia's unique innovation patent system may be creating enforceable rights over minor variations of existing products and processes. Innovation patents are unique to Australia and, in contrast to standard patents, have a lower threshold for patentabil- ity and a relatively short term of eight rather than 20 years. The innovation patent system was introduced in 2001, and was designed to "stimulate innovation in Australian SMEs by providing Australian businesses with industrial property rights for their lower level inventions". Australia's reputation as pro-patent will be enhanced as innovation patents are being relied on even more heavily by local as well as overseas patent holders for protecting and enforcing their rights, both for lower and higher level inventions. Even though all of the features claimed in an innovation patent may be obvious to combine together, this alone will not invalidate the patent. To establish innovative step, all that really needs to be shown is that the new features must make a substantial contribution to the working of the claimed invention. This places the owner of an innovation patent in a powerful position when seeking to assert its patent rights. It will now be difficult to successfully challenge the validity of an innovation patent on the basis of a lack of innovative step. The decision On 30 June 2009, three Judges of the Federal Court handed down their decision in Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd  FCAFC 81. In this decision, their Honours upheld the validity of three innovation patents relating to roadside posts. A consistent feature of the patent claims was the formation of the posts from sheet spring steel so as to make them 'elastically bendable' and the specification as filed asserted this to be a development of the invention over the prior art. A similar post formed from laminated sheet spring steel was found in a prior art document and Dura-Post asserted that the claims of the innovation patent were invalid over this prior art document. However, the patents also claimed in combination with the use of spring steel, a number of other features that were not described in the prior art document. These included: a marker hole to help install the post at the correct 1. depth; a barb serving to anchor the post into the ground; 2. a tapered end to help with driving the post into the 3. ground; ribs to resist buckling; and 4. certain specific dimensions. 5. These additional features were all separately known attri- butes of prior art roadside posts made from materials other than sheet spring steel. In issue was whether the threshold for a valid innovation patent of an 'innovative step' was satisfied by a spring steel roadside post with any of these features.