Play a role in the patent puzzle

Discusses the contentious issues surrounding computer software patents and patenting in connection with the Peer-to-Patent Australia project, a joint initiative of Queensland University of Technology (QUT) and New York Law School (NYLS) that operates with the support and endorsement of IP Australia, the government body housing Australia's patent office. Explains that the project is based on the successful Peer-to-Patent pilots run recently in the USA and Japan that are designed to improve the quality of issued patents and the patent examination process by facilitating community participation in that process. Describes how members of the public are allowed to put forward prior art references that will be considered by IP Australia's patent examiners when determining whether participating applications are novel and inventive, and therefore deserving of a patent. Concludes that, while Peer-to-Patent Australia is not a complete solution to the problems besetting patent law, the model has considerable advantages over the traditional model of patent examination

The peer-to-patent initiative : revitalizing patent examination with peer review

Every day we hear someone complain that this or that patent should not have been granted. People complain that the patent system is now a threat to existing business and innovation be- cause the patent office grants with alarming regularity patents for inventions that are neither novel nor non-obvious. People argue that the patent office cannot keep up with the job of examining the backlog of hundreds of thousands of patents and that, even if it could, the large volumes of prior art literature that need to be considered each time a patent application is received make the decision as to whether a patent should be granted or not a treacherous one.

Peer-to-Patent Australia: First Anniversary Report, December 2010

Peer-to-Patent Australia will initially run as a 12 month pilot project designed to test whether an open community of reviewers can effectively locate prior art that might not otherwise be located by the patent office during a typical examination. Patent applications will be made available for peer review for a period of 6 months and there will follow a 6 month period of joint qualitative and quantitative assessment of the pilot project by IP Australia and QUT. The objective of Peer-to-Patent Australia is to improve the patent examination process and the quality of issued patents by utilising the knowledge and skills of experts in the broader community. It is a way of linking the scientific and technical expertise of anyone with an Internet connection with the expertise of a patent examiner. That community participation consists of members of the public reviewing patent applications and contributing relevant prior art references and comments within a web-based forum. The aim is to bring to light prior art, particularly non-patent prior art, that might otherwise not be identified by patent examiners. The better the prior art resources a patent examiner has at his or her disposal, the more likely a patent application will be assessed properly in terms of novelty and inventive step. The role of Peer-to-Patent Australia in this regard is to act as both a facilitator of discussion and a collector of prior art submissions. Peer-to-Patent Australia collects relevant prior art references on behalf of the reviewing community and forwards that prior art to IP Australia. Section 27 of the Patents Act 1990 (Cth) allows for the Commissioner of Patents to receive submissions of prior art by third parties relevant to the novelty and inventiveness of a particular patent application.

Changing academic practice to prepare nursing undergraduates for an evidence-based approach

Evidence based practice (EBP) has been accepted as a process to assist health professionals in clinical decision making to improve patient outcomes. It requires applying skills in a prescribed sequence to critique existing practices. Many countries, including Australia, require nurses to demonstrate competencies in EBP skills to be registered. In the last ten years, this has lead to universities incorporating EBP in undergraduate nursing degree courses. The literature reports many challenges including students’ difficulties in critically appraising research evidence, and their need for both simplification of the process and extensive support. The purpose of our study was to investigate the effectiveness of a standalone introductory EBP subject for a diverse group of third-year undergraduates, based on a novel but challenging approach to assessment. Despite many changes made in the second iteration of the subject, most students’ perceptions of the subject’s difficulty remained unchanged. This research aligns with the issues identified in the literature and has wider applicability to the teaching of rapidly changing disciplines, where evidence-driven consumers have easy access to information and expect up-to-date practices.

Access to medicine and the dangers of patent linkage : lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.

Physicality in the Information Age : a normative perspective on the patent eligibility of non-physical methods

There has been much conjecture of late as to whether the patentable subject matter standard contains a physicality requirement. The issue came to a head when the Federal Circuit introduced the machine-or-transformation test in In re Bilski and declared it to be the sole test for determining subject matter eligibility. Many commentators criticized the test, arguing that it is inconsistent with Supreme Court precedent and the need for the patent system to respond appropriately to all new and useful innovation in whatever form it arises. Those criticisms were vindicated when, on appeal, the Supreme Court in Bilski v. Kappos dispensed with any suggestion that the patentable subject matter test involves a physicality requirement. In this article, the issue is addressed from a normative perspective: it asks whether the patentable subject matter test should contain a physicality requirement. The conclusion reached is that it should not, because such a limitation is not an appropriate means of encouraging much of the valuable innovation we are likely to witness during the Information Age. It is contended that it is not only traditionally-recognized mechanical, chemical and industrial manufacturing processes that are patent eligible, but that patent eligibility extends to include non-machine implemented and non-physical methods that do not have any connection with a physical device and do not cause a physical transformation of matter. Concerns raised that there is a trend of overreaching commoditization or propertization, where the boundaries of patent law have been expanded too far, are unfounded since the strictures of novelty, nonobviousness and sufficiency of description will exclude undeserving subject matter from patentability. The argument made is that introducing a physicality requirement will have unintended adverse effects in various fields of technology, particularly those emerging technologies that are likely to have a profound social effect in the future.

Assurance of learning : the role of work integrated learning and industry partners

In the partnering with students and industry it is important for universities to recognize and value the nature of knowledge and learning that emanates from work integrated learning experiences is different to formal university based learning. Learning is not a by-product of work rather learning is fundamental to engaging in work practice. Work integrated learning experiences provide unique opportunities for students to integrate theory and practice through the solving of real world problems. This paper reports findings to date of a project that sought to identify key issues and practices faced by academics, industry partners and students engaged in the provision and experience of work integrated learning within an undergraduate creative industries program at a major metropolitan university. In this paper, those findings are focused on some of the particular qualities and issues related to the assessment of learning at and through the work integrated experience. The findings suggest that the assessment strategies needed to better value the knowledges and practices of the Creative Industries. The paper also makes recommendations about how industry partners might best contribute to the assessment of students’ developing capabilities and to continuous reflection on courses and the assurance of learning agenda.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Learning and teaching from the edge to centre stage : Critical factors in embedding sustainable university-wide engagement in external awards and grants funding initiatives.

Teaching awards, grants and fellowships are strategies used to recognise outstanding contributions to learning and teaching, encourage innovation, and to shift learning and teaching from the edge to centre stage. Examples range from school, faculty and institutional award and grant schemes to national schemes such as those offered by the Australian Learning and Teaching Council (ALTC), the Carnegie Foundation for the Advancement of Teaching in the United States, and the Fund for the Development of Teaching and Learning in higher education in the United Kingdom. The Queensland University of Technology (QUT) has experienced outstanding success in all areas of the ALTC funding since the inception of the Carrick Institute for Learning and Teaching in 2004. This paper reports on a study of the critical factors that have enabled sustainable and resilient institutional engagement with ALTC programs. As a lens for examining the QUT environment and practices, the study draws upon the five conditions of the framework for effective dissemination of innovation developed by Southwell, Gannaway, Orrell, Chalmers and Abraham (2005, 2010): 1. Effective, multi-level leadership and management 2. Climate of readiness for change 3. Availability of resources 4. Comprehensive systems in institutions and funding bodies 5. Funding design The discussion on the critical factors and practical and strategic lessons learnt for successful university-wide engagement offer insights for university leaders and staff who are responsible for learning and teaching award, grant and associated internal and external funding schemes.

Transferring knowledge through peer-reviewed assessment : the creation of a community of practice and the threats to its survival

While it is generally accepted in the learning and teaching literature that assessment is the single biggest influence on how students approach their learning, assessment methods within higher education are generally conservative and inflexible. Constrained by policy and accreditation requirements and the need for the explicit articulation of assessment standards for public accountability purposes, assessment tasks can fail to engage students or reflect the tasks students will face in the world of practice. Innovative assessment design can simultaneously deliver program objectives and active learning through a knowledge transfer process which increases student participation. This social constructivist view highlights that acquiring an understanding of assessment processes, criteria and standards needs active student participation. Within this context, a peer-assessed, weekly, assessment task was introduced in the first “serious” accounting subject offered as part of an undergraduate degree. The positive outcomes of this assessment innovation was that student failure rates declined 15%, tutorial participation increased fourfold, tutorial engagement increased six-fold and there was a 100% approval rating for the retention of the assessment task. In contributing to the core conference theme of “seismic” shifts within higher education, in stark contrast to the positive student response, staff-related issues of assessment conservatism and the necessity of meeting increasing research commitments, threatened the assessment task’s survival. These opposing forces to change have the potential to weaken the ability of higher education assessment arrangements to adequately serve either a new generation of students or the sector's community stakeholders.

Transferring knowledge through peer-reviewed assessment : the creation of a community of practice and the threats to its survival

While it is generally accepted in the learning and teaching literature that assessment is the single biggest influence on how students approach their learning, assessment methods within higher education are generally conservative and inflexible. Constrained by policy and accreditation requirements and the need for the explicit articulation of assessment standards for public accountability purposes, assessment tasks can fail to engage students or reflect the tasks students will face in the world of practice. Innovative assessment design can simultaneously deliver program objectives and active learning through a knowledge transfer process which increases student participation. This social constructivist view highlights that acquiring an understanding of assessment processes, criteria and standards needs active student participation. Within this context, a peer-assessed, weekly, assessment task was introduced in the first “serious” accounting subject offered as part of an undergraduate degree. The positive outcomes of this assessment innovation was that student failure rates declined 15%, tutorial participation increased fourfold, tutorial engagement increased six-fold and there was a 100% approval rating for the retention of the assessment task. In contributing to the core conference theme of “seismic” shifts within higher education, in stark contrast to the positive student response, staff-related issues of assessment conservatism and the necessity of meeting increasing research commitments, threatened the assessment task’s survival. These opposing forces to change have the potential to weaken the ability of higher education assessment arrangements to adequately serve either a new generation of students or the sector's community stakeholders.

Physicality in Australian Patent Law

It is generally understood that the patent system exists to encourage the conception and disclosure of new and useful inventions embodied in machines and other physical devices, along with new methods that physically transform matter from one state to another. What is not well understood is whether, and to what extent, the patent system is to encourage and protect the conception and disclosure of inventions that are non-physical methods – namely those that do not result in a physical transformation of matter. This issue was considered in Grant v Commissioner of Patents. In that case the Full Court of the Federal Court of Australia held that an invention must involve a physical effect or transformation to be patentable subject matter. In doing so, it introduced a physicality requirement into Australian law. What this article seeks to establish is whether the court’s decision is consistent with the case law on point. It does so by examining the key common law cases that followed the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, the undisputed authoritative statement of principle in regard to the patentable subject matter standard in Australia. This is done with a view to determining whether there is anything in those cases that supports the view that the Australian patentable subject matter test contains a physicality requirement.

Six degrees of cohesion in patent citation network

While the phrase “six degrees of separation” is widely used to characterize a variety of humanderived networks, in this study we show that in patent citation network, related patents are connected with an average distance of 6, whereas an average distance for a random pair of nodes in the graph is approximately 15. We use this information to improve the recall level in prior-art retrieval in the setting of blind relevance feedback without any textual knowledge.

Physical effect in patent law

This thesis addresses one of the fundamental issues that remains unresolved in patent law today. It is a question that strikes at the heart of what a patent is and what it is supposed to protect. That question is whether an invention must produce a physical effect or cause a physical transformation of matter to be patentable, or whether it is sufficient that an invention involves a specific practical application of an idea or principle to achieve a useful result. In short, the question is whether patent law contains a physicality requirement. Resolving this issue will determine whether only traditional mechanical, industrial and manufacturing processes are patent eligible, or whether patent eligibility extends to include purely intangible, or non-physical, products and processes. To this end, this thesis seeks to identify where the dividing line lies between patentable subject matter and the recognised categories of excluded matter, namely, fundamental principles of nature, physical phenomena, and abstract ideas. It involves determining which technological advances are worth the inconvenience monopoly protection causes the public at large, and which should remain free for all to use without restriction. This is an issue that has important ramifications for innovation in the ‘knowledge economy’ of the Information Age. Determining whether patent law contains a physicality requirement is integral to deciding whether much of the valuable innovation we are likely to witness, in what are likely to be the emerging areas of technology in the near future, will receive the same encouragement as industrial and manufacturing advances of previous times.

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.