Working paper
Patent opposition and the constitution: Before or after?
Working Paper. Intellectual Property Research Institute of Australia, 107, University of Melbourne. Intellectual Property Research Institute of Australia
2007
Abstract
The opposition procedure in Australian patent law is an effective tool for improving the quality of granted patents. The current, pre-grant, process is, however, open to abuse by opponents who merely wish to delay the grant of a patent. Received wisdom has it that a post-grant procedure would be contrary to the Australian Constitution - that is, for a delegate of the Commissioner of Patents to decide an opposition post-grant would be an improper exercise of judicial power. This article details the various tests for judicial power to assess the veracity of this wisdom. The conclusion, after a review of the High Court precedents and commentary, is that a post-grant opposition procedure, assuming it is substantially similar to the current pre-grant process, would not offend the Constitution.
Details
- Title
- Patent opposition and the constitution: Before or after?
- Authors/Creators
- C. Dent (Author/Creator)
- Series
- Working Paper. Intellectual Property Research Institute of Australia; 107
- Publisher
- University of Melbourne. Intellectual Property Research Institute of Australia; Melbourne, VIC
- Identifiers
- 991005544623707891
- Murdoch Affiliation
- School of Law
- Language
- English
- Resource Type
- Working paper
Metrics
111 File views/ downloads
68 Record Views