Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

Start by selecting your Topic of interest below. Then choose your Regions and finally refine the exact Subjects you are seeking clarity on to view detailed analysis provided by our carefully selected internationally recognised experts.

4. Results: Answers
Legal framework
What are the sources of patent law in your jurisdiction?

Answer ... Australian patent law is governed by the Commonwealth Patents Act (1990) and the attendant Patents Regulations (1991). As federal legislation, the act and regulations apply to all Australian territory. There is no co-existing state legislation.

Australia is also a common law jurisdiction, so the decisions of courts and relevant tribunals also form part of the legal framework. Decisions of the High Court carry the most weight, ahead of the Federal Court (where practically all contentious patent matters are heard). Decisions of the Australian Patent Office (which is considered a tribunal) also contribute significant case law in relation to patent matters. Case law from the Administrative Appeals Tribunal also forms proper precedent for procedural matters.

The Australian Patent Office Manual of Practice and Procedure, while having no legal force, sets out the Australian Patent Office’s current guidance to examiners as to how the law should be applied, as well as explaining current procedures and providing approved forms.

For more information about this answer please contact: Charles Tansey from Shelston IP
Who can register a patent?

Answer ... A patent can be granted to:

  • the actual inventor (or inventors);
  • a person which is entitled to have the invention assigned to it;
  • a person which derives title from the actual inventor or which is entitled to have the invention assigned to it; or
  • the legal representative of a deceased person in one of the above categories.

Apart from the actual inventor, the person registering a patent need not be a natural person and can be any suitable legal entity, such as a body corporate (eg, a public or private company) or body politic (a country). Trusts, partnerships and similar structures are not legal persons and as such cannot register a patent.

A person which is entitled to have an invention assigned to it is typically the employer of an inventor of an invention conceived in the normal course of employment.

While limitations exist on who may register a patent, no such limitations apply to who may apply for a patent.

There is no requirement that a person be an Australian citizen or otherwise resident in Australia in order to register a patent.

For more information about this answer please contact: Charles Tansey from Shelston IP