An empirical study of business method patent applications filed in Australia 2000-2009

This article sets out the results of an empirical research study into the uses to which the Australian patent system is being put in the early 21st century. The focus of the study is business method patents, which are of interest because they are a controversial class of patent that are thought to differ significantly from the mechanical, chemical and industrial inventions that have traditionally been the mainstay of the patent system. The purpose of the study is to understand what sort of business method patent applications have been lodged in Australia in the first decade of this century and how the patent office is responding to those applications.

Percutaneous patent foramen ovale closure : outcomes with the Premere and Amplatzer devices

BACKGROUND: Transcatheter closure of patent foramen ovale (PFO) has rapidly evolved as the preferred management strategy for the prevention of recurrent cerebrovascular events in patients with cryptogenic stroke and presumed paradoxical embolus. There is limited outcome data in patients treated with this therapy particularly for the newer devices. METHODS: Data from medical records, catheter, and echocardiography databases on 70 PFO procedures performed was collected prospectively. RESULTS: The cohort consisted of 70 patients (mean age 43.6 years, range 19 to 77 years), of whom 51% were male. The indications for closure were cryptogenic cerebrovascular accident (CVA) or transient ischemic attack (TIA) in 64 (91%) and peripheral emboli in two (2.8%) patients and cryptogenic ST-elevation myocardial infarction in one (1.4%), refractory migraine in one (1.4%), decompression sickness in one (1.4%), and orthodeoxia in one (1.4%) patient, respectively. All patients had demonstrated right-to-left shunting on bubble study. The procedures were guided by intracardiac echocardiography in 53%, transesophageal echocardiography in 39%, and the remainder by transthoracic echo alone. Devices used were the Amplatzer PFO Occluder (AGA Medical) (sizes 18-35 mm) in 49 (70%) and the Premere device (St. Jude Medical) in 21 (30%). In-hospital complications consisted of one significant groin hematoma with skin infection. Echocardiographic follow-up at 6 months revealed that most patients had no or trivial residual shunt (98.6%), while one patient (1.4%) had a mild residual shunt. At a median of 11 months' follow-up (range 1 month to 4.3 years), no patients (0%) experienced further CVA/TIAs or paradoxical embolic events during follow-up. CONCLUSION: PFO causing presumed paradoxical embolism can be closed percutaneously with a low rate of significant residual shunting and very few complications. Recurrent index events are uncommon at medium-term (up to 4 years) follow-up.

Addressing the impediments copyright imposes on the use of patent specifications and prior art documents to improve patent quality

This article considers from an Australian perspective the impediments that copyright law places in the path of those who seek to use patent specifications and non-patent prior art documents in ways that are necessary to the proper functioning of the patent system. Until recently, copyright law in Australia had limited the uses to which members of the public could put patent specifications in that country. Those impediments have been removed as a result of an important legislative change to the way in which copyright in patent specifications can be enforced. The change gives the public a greater freedom to make use of patent specifications than it enjoyed before, and removes unwarranted restrictions upon the ways in which the public can reuse valuable information. However, what the amendment does not address is the impediments copyright imposes on using non-patent prior art documents in ways that advance the public interest.

Validation of β-actin used as endogenous control for gene expression analysis in mechanobiology studies : amendments

We write in response to the letter by Liu et al. [1] commenting on our article, ‘‘Mesenchymal Stem Cells Regulate Angiogenesis According to Their Mechanical Environment’’ [2]. The study by Liu et al. demonstrates that the commonly used endogeneous reference gene (ERG), b-actin, is upregulated by mechanical loading, indicating a potential bias in the determined target gene expression when normalizing to b-actin, such as in our report on unchanged vascular endothelial growth factor (VEGF) and hypoxia-inducible factors (HIF)-1a mRNA levels in mechanically loaded mesenchymal stem cells (MSCs).

Australian patent enforcement : a proposal for an expert panel opinion

The Australian Government has been concerned “to find ways of making patent enforcement less of an issue” and to make it “cheaper, simpler and quicker to get fair and appropriate resolution for any dispute”. Major problems relating to patent enforcement in Australia have been identified as: the cost of legal proceedings; the lack of patent owners’ financial capacity to fund enforcement proceedings; delay; and uncertainty as to the outcome and lack of knowledge about the processes of enforcement. This paper considers some of the problems associated with patent enforcement in Australia and proposes an approach to patent litigation which is directed at alleviating some of the difficulties which have been identified. Specifically, it proposes a strategy designed to identify the parties’ risks at an early stage of patent litigation proceeding and facilitate an early resolution of the dispute.

Repeatability or reproducibility in Australian Patent Law

This article considers the extent to which a claimed process must be repeatable or reproducible in order to be patentable according to Australian patent law. It asks whether a process must yield identical or near-identical results each time the process is invoked, or if not, what degree of repeatability is required. The question is relevant when considering, among other things, the patentability of some methods of medical treatment and diagnosis, biotechnology inventions and business methods.

Amendments potentially time-barred : A practical approach

In Mineral Resources Engineering Services Pty Ltd as Trustee for the Meakin Investment Trust v Commonwealth Bank of Australia: Hay v Commonwealth Bank of Australia [2015] QSC 62 Philip McMurdo J considered challenges to amended statements of claim in two related actions. The amendments were potentially time-barred and his Honour considered in particular the date from which the amendments should take effect.

Cosmo, Cosmolino: Patent law and nanotechnology

Patent law has a significant instrumental and symbolic role in regulating nanotechnology. A 2011 report of the United States Federal Trade Commission noted that ‘the patent system plays a critical role in promoting innovation across industries from biotechnology to nanotechnology, and by entities from large corporations to independent inventors’. This chapter considers the much contested legal, ethical and social issues involved with regulating the patenting of nanotechnology. Section I considers the efforts of patent offices to classify nanotechnology and the empirical evidence about patent filing rates. Section II examines whether there is a ‘tragedy of the anticommons’ emerging in respect of nanotechnology. It contemplates access mechanisms – such as the defence of experimental use, patent pools, open innovation models and technology transfer. Section III explores ethical and social concerns associated with nanotechnology – in particular, issues about the impact upon human health and the environment.

Patent-busting: The public patent foundation, gene patents and the Seed Wars

This chapter considers the Public Patent Foundation as a novel institution in the patent framework. It contends that such a model can play a productive role in challenging the validity of high-profile patents; working as an amicus curiae in significant court cases; and also promoting patent law reform. However, there are limits to the ‘patent-busting’ of the Foundation. The not-for-profit legal services organization has only had the time and resources to challenge a number of noteworthy patents. Other jurisdictions – such as Australia – lack such public-spirited "patent-busting" entities. This chapter considers a number of key disputes involving the Public Patent Foundation. Part I examines the role of the Public Patent Foundation in the landmark dispute over Myriad Genetics’ patents in respect of breast cancer and ovarian cancer. Part II considers the role of the Public Patent Foundation in litigation between organic farmers and Monsanto. Part III examines the role of the Public Patent Foundation in larger debates about patent law reform in the United States – particularly looking at the Leahy-Smith America Invents Act 2011 (US). The conclusion contends that the patent-busting model of the Public Patent Foundation should be emulated in respect of other technological fields, and other jurisdictions – such as Australia. The initiative could also be productively applied to other forms of intellectual property – such as trade mark law, designs law, plant breeders’ rights, plant breeders’ rights, and access to genetic resources.

A crowning glory: Patent law and public health

Australian patent law reforms are critical to ensuring Australians have access to vital health-care services and technologies and that people in developing countries have access to affordable, life-saving medicines...

The high price of drug patents: Australia, patent law, pharmaceutical drugs and the Trans-Pacific Partnership

This week, the secrecy surrounding an independent Australian report on patent law and pharmaceutical drugs has been lifted, and the work has been published to great acclaim...

Geopiracy: Patent law, climate change, and geoengineering

Patent law is a regime of intellectual property, which provides exclusive rights regarding scientific inventions, which are novel, inventive, and useful. There has been much debate over the limits of patentable subject matter relating to emerging technologies. The Supreme Court of the US has sought to rein in the expansive interpretation of patentability by lower courts in a series of cases dealing with medical information (Prometheus), finance (Bilski), and gene patents (Myriad). This has led to a reinvigoration of the debate over the boundaries of patentable subject matter. There has been controversy about the rise in patenting of geoengineering - particularly by firms such as Intellectual Ventures.

23andMe Inc.: Patent law and lifestyle genetics

The venture, 23andMe Inc., raises a host of issues in respect of patent law, policy, and practice in respect of lifestyle genetics and personalised medicine. The company observes: ‘We recognize that the availability of personal genetic information raises important issues at the nexus of ethics, law, and public policy’. 23andMe Inc. has tested the boundaries of patent law, with its patent applications, which cut across information technology, medicine, and biotechnology. The company’s research raises fundamental issues about patentability, especially in light of the litigation in Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories Inc. and Association for Molecular Pathology v. United States Patent and Trademark Office and Myriad Genetics Inc. There has been much debate and controversy over 23andMe Inc. filing patent applications – particularly in respect of its granted patent on ‘Polymorphisms associated with Parkinson’s Disease’. The direct-to-consumer marketing of genetic testing by 23andMe Inc. has also raised important questions of bioethics and human rights. It is queried whether the terms of service for 23andMe Inc. provide adequate recognition of the concepts of informed consent and benefit-sharing, especially in light of litigation in this area in the United States. Given the patent thickets surrounding genetic testing, the case study of 23andMe Inc. also highlights questions about patent infringement and patent exceptions. The future reform of patent law, policy, and practice needs to take into account new developments in lifestyle genetics and personalised medicine – as exemplified by 23andMe Inc.