Is there a physicality requirement at Common Law? : a survey of the Pre-NRDC cases discussing ‘Manufacture’

One of the fundamental issues that remains unresolved in patent law today, both in Australia and in other jurisdictions, 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 Australian patent law contains a physicality requirement. Despite being recently considered by the Federal Court, this is arguably an issue that has yet to be satisfactorily resolved in Australia. In its 2006 decision in Grant v Commissioner of Patents, the Full Court of the Federal Court of Australia found that the patentable subject matter standard is rooted in the physical, when it held that an invention must involve a physical effect or transformation to be patent eligible. That decision, however, has been the subject of scrutiny in the academic literature. This article seeks to add to the existing literature written in response to the Grant decision by examining in detail the key common law cases decided prior to the High Court’s watershed decision in National Research Development Corporation v Commissioner of Patents, which is the undisputed authoritative statement of principle in regards to the patentable subject matter standard in Australia. This article, in conjunction with others written by the author, questions the Federal Court’s assertion in Grant that the physicality requirement it established is consistent with existing law.

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.

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.

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.

The requirement to 'Start a Proceeding' to prevent the lapse of a caveat

Section 126 of the Land Title Act 1994 (Qld) regulates whether, and if so, when a caveat will lapse. While certain caveats will not lapse due to the operation of s 126(1), if a caveator does not wish a caveat to which the section applies to lapse, the caveator must start a proceeding in a court of competent jurisdiction to establish the interest claimed under the caveat within the time limits specified in, and otherwise comply with the obligations imposed by, s 126(4). The requirement, in s 126(4), to “start a proceeding” was the subject of judicial examination by the Court of Appeal (McMurdo P, Holmes JA and MacKenzie J) in Cousins Securities Pty Ltd v CEC Group Ltd [2007] QCA 192.

Physicality and cooperative design

CSCW researchers have increasingly come to realize that the material work setting and its population of artefacts play a crucial part in coordination of distributed or co-located work. This paper uses the notion of physicality as a basis to understand cooperative work. Using examples from an ongoing fieldwork on cooperative design practices, it provides a conceptual understanding of physicality and shows that material settings and co-workers’ working practices play an important role in understanding the physicality of cooperative design.

UCPR r548 - requirement for report or proof of evidence intended to be relied on at trial

In Oates v Cootes Tanker Service Pty Ltd [2005] QSC 213, Fryberg J considered some interesting questions of construction in relation to the rule requiring the plaintiff to provide a statement of loss and damage in personal injuries proceedings (UCPR r 548) and the rule in relation to the giving of expert evidence (UCPR r427)

Deconstructing antiobesity compound action : requirement of serotonin 5-HT2B receptors for dexfenfluramine anorectic effects

The now-banned anorectic molecule, dexfenfluramine, promotes serotonin release through a serotonin transporter-dependent mechanism, and it has been widely prescribed for the treatment of obesity. Previous studies have identified that 5-HT(2B) receptors have important roles in dexfenfluramine side effects, that is, pulmonary hypertension, plasma serotonin level regulation, and valvulopathy. We thus investigated a putative contribution of 5-HT(2B) receptors in dexfenfluramine-dependent feeding behavior in mice. Interestingly, the hypophagic response to dexfenfluramine (3-10 mg/kg) observed in wild-type mice (1-4 h) was eliminated in mice lacking 5-HT(2B) receptors (5-HT(2B)(-/-)). These findings were further validated by the lack of hypophagic response to dexfenfluramine in wild-type mice treated with RS127445, a highly selective and potent antagonist (pKi=8.22 ± 0.24). Using microdialysis, we observed that in 5-HT(2B)(-/-) awake mice, the dexfenfluramine-induced hypothalamic peak of serotonin release (1 h) was strongly reduced (fourfold) compared with wild type. Moreover, using hypothalamic synaptosomes, we established the serotonergic neuron autonomous properties of this effect: a strong serotonin release was observed upon dexfenfluramine stimulation of synaptosome preparation from wild type but not from mice lacking active 5-HT(2B) receptors. These findings strongly suggest that activation of presynaptic 5-HT(2B) receptors is a limiting step in the serotonin transporter dependent-releasing effect of dexfenfluramine, whereas other serotonin receptors act downstream with respect to feeding behavior.

Requirement Of A Diperoxovanadate-Derived Intermediate for the Interdependent Oxidation Of Vanadyl And Nadh

Oxygen release accompanying oxidation of vanadyl by diperoxovanadate was suppressed on addition of NADH. The added NADH was rapidly oxidized, oxygen in the medium was consumed, and the reaction terminated on exhaustion of either NADH or vanadyl. The consumption of oxygen and disappearance of NADH needed small concentrations of diperoxovanadate to initiate and increased with increase in the concentration of vanadyl and NADH or decrease of pH. The products of the reaction were found to be NAD(+) from NADH and vanadate oligomers from vanadyl and oxygen. The reaction was insensitive to catalase and was not dependent on H2O2. The reaction was inhibited by superoxide dismutase, cytochrome c, EDTA, Mn2+, histidine, and DMPO, but not by hydroxyl radical scavengers such as ethanol and benzoate, The ESR spectrum of the reaction mixture showed the presence of the 1:2:2:1 quartet signal typical of a DMPO-OH adduct, but this was not modified by ethanol, This oxygen radical species, possibly of (OV)-O-. type derived from diperoxovanadate, is proposed to have a role in the reactions of oxygen release and NADH oxidation

Soil carbon stock in the tropical rangelands of Australia: Effects of soil type and grazing pressure, and determination of sampling requirement.

On-going, high-profile public debate about climate change has focussed attention on how to monitor the soil organic carbon stock (C(s)) of rangelands (savannas). Unfortunately, optimal sampling of the rangelands for baseline C(s) - the critical first step towards efficient monitoring - has received relatively little attention to date. Moreover, in the rangelands of tropical Australia relatively little is known about how C(s) is influenced by the practice of cattle grazing. To address these issues we used linear mixed models to: (i) unravel how grazing pressure (over a 12-year period) and soil type have affected C(s) and the stable carbon isotope ratio of soil organic carbon (delta(13)C) (a measure of the relative contributions of C(3) and C(4) vegetation to C(s)); (ii) examine the spatial covariation of C(s) and delta(13)C; and, (iii) explore the amount of soil sampling required to adequately determine baseline C(s). Modelling was done in the context of the material coordinate system for the soil profile, therefore the depths reported, while conventional, are only nominal. Linear mixed models revealed that soil type and grazing pressure interacted to influence C(s) to a depth of 0.3 m in the profile. At a depth of 0.5 m there was no effect of grazing on C(s), but the soil type effect on C(s) was significant. Soil type influenced delta(13)C to a soil depth of 0.5 m but there was no effect of grazing at any depth examined. The linear mixed model also revealed the strong negative correlation of C(s) with delta(13)C, particularly to a depth of 0.1 m in the soil profile. This suggested that increased C(s) at the study site was associated with increased input of C from C(3) trees and shrubs relative to the C(4) perennial grasses; as the latter form the bulk of the cattle diet, we contend that C sequestration may be negatively correlated with forage production. Our baseline C(s) sampling recommendation for cattle-grazing properties of the tropical rangelands of Australia is to: (i) divide the property into units of apparently uniform soil type and grazing management; (ii) use stratified simple random sampling to spread at least 25 soil sampling locations about each unit, with at least two samples collected per stratum. This will be adequate to accurately estimate baseline mean C(s) to within 20% of the true mean, to a nominal depth of 0.3 m in the profile.

Requirement for calcium ions in mycobacteriophage I3 DNA injection and propagation

Ca2+ ions are absolutely necessary for the propagation of mycobacteriophage I3 in synthetic medium. These ions are required for successful infection of the host and during the entire span of the intracellular development of the phage. A direct assay of the phage DNA injection using 32[P] labelled phage, showns that Ca2+ ions are necessary for the injection process. The injection itself is a slow process and takes 15 min to complete at 37°C. The bacteria infected in presence of Ca2+ tend to abort if the ions are subsequently withdrawn from the growth medium. The effect of calcium withdrawal is maximally felt during the early part of the latent period; however, later supplementation of Ca2+ ions salvage phage production and the mature phage progeny appear after a delayed interval, proportional to the time of addition of Ca2+.

Specific requirement of lysophosphatidylcholine for palmitoyl-CoA synthetase of chicken intestine

The presence of palmitoyl-CoA synthetase (EC 6.2.1.3) in the brush borderfree particulate fraction of chicken intestinal mucosa is demonstrated. The enzyme was dependent on the simultaneous presence of lysophosphatidylcholine and Triton X-100 as well as ATP, CoA and Mg2+ for maximal activity. Lysophosphatidylcholine could not be replaced by other lipids. Enzyme preparations solubilized by Triton X-100 or lysophosphatidylcholine were still dependent on the presence of detergents for maximal activity.

A Novel Invertase from a Thermophilic FungusThermomyces lanuginosus:Its Requirement of Thiol and Protein for Activation

Unlike the invertases from the mesophilic fungi and yeasts, invertase from a thermophilic fungus,Thermomyces lanuginosus,was unusually unstable bothin vivoandin vitro.The following observations suggested that the unstable nature of the enzyme activity in the cell-free extracts was due to the oxidation of the cysteine residue(s) in the enzyme molecule: (a) the addition of dithiothreitol or reduced glutathione stabilized invertase activity during storage of the extracts and also revived enzyme activity in the extracts which had become inactive with time; (b)N-ethylmaleimide, iodoacetamide, oxidized glutathione, cystine, or oxidized coenzyme A-inactivated invertase; (c) invertase activity was low when the ratio reduced/oxidized glutathione was lower and high when this ratio was higher, suggesting regulation of the enzyme by thiol/disulfide exchange reaction. In contrast to the activation of invertase by the thiol compounds and its inactivation by the disulfides in the cell-free extracts, the purified enzyme did not respond to these compounds. Following its inactivation, the purified enzyme required a helper protein in addition to dithiothreitol for maximal activation. A cellular protein was identified that promoted activation of invertase by dithiothreitol and it was called “PRIA” for theprotein which helps inrestoringinvertaseactivity. The revival of enzyme activity was due to the conversion of the inactive invertase molecules into an active form. A model is presented to explain the modulation of invertase activity by the thiol compounds and the disulfides, both in the crude cell-free extracts and in the purified preparations. The requirement of free sulfhydryl group(s) for the enzyme activity and, furthermore, the reciprocal effects of the thiols and the disulfides on invertase activity have not been reported for invertase from any other source. The finding of a novel invertase which shows a distinct mode of regulation demonstrates the diversity in an enzyme that has figured prominently in the development of biochemistry.