Commonwealth Consolidated Acts Commonwealth Consolidated ActsSection 3
In this Act, unless the contrary intention appears:
"1952 Act" means the Patents Act 1952 .
"application" , in Chapter 15, means a patent application, and includes a relevant international application.
"approved form" means a form approved by the Commissioner for the purposes of the provision in which the expression appears.
"associated technology" has the same meaning as in the Safeguards Act.
"Australia" includes each external Territory.
"Australian continental shelf" means the continental shelf adjacent to the coast of Australia (including the coast of any island forming part of a State or Territory).
"Australian Register of Therapeutic Goods" means the register maintained under section 9A of the Therapeutic Goods Act 1989 .
"authority" , in Chapter 15, has the same meaning as in the Safeguards Act.
"basic application" means an application for protection in respect of an invention, being an application made in a Convention country.
"Board" means the Trans - Tasman IP Attorneys Board continued in existence by section 227A.
"Budapest Treaty" means the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure signed at Budapest on 28 April 1977, as that treaty is in force for Australia from time to time, together with the Regulations annexed to that treaty, as those Regulations are in force for Australia from time to time.
Note: The text of the Treaty is set out in Australian Treaty Series 1987 No. 9 ([1987] ATS 9). In 2011, the text of a Treaty in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
"certified" , in respect of an innovation patent other than in section 19, means a certificate of examination issued by the Commissioner under paragraph 101E(2)(c) in respect of the patent.
"claim" means:
(a) when used as a noun in relation to a patent--a claim (including a dependent claim) of the specification relating to the complete application on which the patent was granted; and
(b) when used as a noun otherwise than in relation to a patent--a claim (including a dependent claim) of a complete specification; and
(c) when used as a verb--to claim in a claim (including a dependent claim) of a complete specification.
"commencing day" means the day on which this Act commences.
"Commissioner" means the Commissioner of Patents.
"company" means:
(a) a company registered under the Corporations Act 2001 ; or
(b) a company registered under the Companies Act 1993 of New Zealand.
"compensable person" means:
(a) in relation to a patent acquired by the Commonwealth--the patentee and any person recorded in the Register as having an interest in the patent; and
(b) in relation to an invention that is the subject of a patent application and is so acquired--the nominated person in relation to the application.
"complete specification" means (other than in section 116) a specification filed in respect of a complete patent application or, if the specification has been amended, the complete specification as amended.
"Convention applicant" , in relation to a basic application, means a person (or a body of persons, whether incorporated or not) who:
(a) has made the basic application; or
(b) is the assignee of that applicant; or
(c) would, on the grant of a patent on that application, be entitled to have the patent assigned to the person; or
(d) is the legal representative of a person mentioned in paragraph (a), (b) or (c); or
(e) has the consent of a person mentioned in paragraph (a), (b), (c) or (d) to make a Convention application based on that basic application.
"Convention application" means a patent application made under Part 1 of Chapter 3.
"Convention country" has the meaning given by section 29B.
"depositary institution" means a body or institution that receives, accepts and stores micro - organisms and furnishes samples of micro - organisms.
"deposit requirements" means the requirements specified in paragraphs 6(a) to (d), inclusive.
"Deputy Commissioner" means a Deputy Commissioner of Patents.
"Designated Manager" has the meaning given by section 200A.
"Director" means the Director of Safeguards.
"director" of a company has the same meaning as in the Corporations Act 2001 .
"Director-General of IP Australia" means the SES employee who holds or performs the duties of the position of Director - General of IP Australia.
"eligible importing country" means a foreign country of a kind prescribed by regulation.
Note: A regulation made for the purposes of this definition may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time (see subsection 228(5)).
"eligible person" , in relation to an invention, means a person to whom a patent for the invention may be granted under section 15.
"employee" means a person, other than the Commissioner or a Deputy Commissioner, who:
(a) is a person engaged under the Public Service Act 1999 and is employed in the Patent Office; or
(b) is not such a person but performs services, in the Patent Office, for or on behalf of the Commonwealth.
"examination" means:
(a) in relation to a patent request and a complete specification relating to a standard patent--an examination of the request and specification under section 45; or
(b) in relation to an innovation patent--an examination of the complete specification relating to the patent under section 101B.
"exclusive licensee" means a licensee under a licence granted by the patentee and conferring on the licensee, or on the licensee and persons authorised by the licensee, the right to exploit the patented invention throughout the patent area to the exclusion of the patentee and all other persons.
"exploit" , in relation to an invention, includes:
(a) where the invention is a product--make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or
(b) where the invention is a method or process--use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use.
"exploited for Crown purposes" has the meaning given by subsection 160A(1).
"Federal Court" means the Federal Court of Australia.
"file" means file with the Patent Office.
Note: See also section 214.
"foreign aircraft" means an aircraft registered in a prescribed foreign country.
"foreign land vehicle" means a land vehicle owned by a person ordinarily resident in a prescribed foreign country.
"foreign vessel" means a vessel registered in a prescribed foreign country.
"formalities check" means, in respect of an application for an innovation patent, the checking process undertaken under section 52 using the process set out in the regulations.
"incorporated legal practice" means a body corporate recognised under a law of the Commonwealth, a State or a Territory as an incorporated legal practice (however described).
"incorporated patent attorney" has the meaning given by subsection 198(10).
"infringement proceedings" means proceedings for infringement of a patent.
"innovation patent" means letters patent for an invention granted under section 62.
"intellectual property advice" has the meaning given by subsection 200(2C).
"interested party" , in relation to a patent application, means the applicant or a joint applicant, or a person who claims to be entitled to the grant of a patent on the application, either alone or jointly with another person.
"international application" has the same meaning as in the PCT.
"international depositary authority" has the same meaning as in the Budapest Treaty.
"international filing date" , in relation to an international application, means the date given to the international application as its international filing date under the PCT.
"invention" means any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies, and includes an alleged invention.
"legal practitioner" means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory.
"legal representative" , in relation to a deceased person, means a person to whom probate of the will of the deceased person, letters of administration of the estate of the deceased person, or any other similar grant, has been granted, whether in Australia or anywhere else, but does not include such a person who, under the terms of the grant, is not entitled to do an act in relation to which the expression is used.
"licence" means a licence to exploit, or to authorise the exploitation of, a patented invention.
"main invention" has the meaning given in section 81.
"New Zealand Commissioner of Patents" means the person who holds or performs the duties of the office or position of Commissioner of Patents under or in accordance with a law of New Zealand.
"New Zealand Patents Minister" means the Minister of New Zealand who:
(a) under the authority of a warrant; or
(b) with the authority of the Prime Minister of New Zealand;
is responsible for the administration of a law of New Zealand relating to the regulation of patent attorneys.
"New Zealand patents official" means a person:
(a) who is an employee in any part of the State services of New Zealand; and
(b) whose functions or duties relate to the administration of a law of New Zealand relating to patents for inventions.
"nominated person" means the person identified in a patent request as the person to whom the patent is to be granted.
"non-infringement declaration" means a declaration mentioned in subsection 125(1).
"Official Journal" means the official journal mentioned in section 222.
"patent" means a standard patent or an innovation patent.
"patentable invention" means an invention of the kind mentioned in section 18.
"patent application" means an application for a standard patent or an application for an innovation patent.
"patent area" means:
(a) Australia; and
(b) the Australian continental shelf; and
(c) the waters above the Australian continental shelf; and
(d) the airspace above Australia and the Australian continental shelf.
"patent attorney director" has the meaning given by subsection 198(11).
"patented pharmaceutical invention" , in relation to a pharmaceutical product, means:
(a) if the product is a patented product--the patented product; or
(b) if the product results from the use of a patented process--the patented process.
"patented process" means a process in respect of which a patent has been granted and is in force.
"patented product" means a product in respect of which a patent has been granted and is in force.
"patentee" means the person for the time being entered in the Register as the grantee or proprietor of a patent.
"patent of addition" means letters patent for an invention granted under Chapter 7 and includes, for the purposes of section 25, a patent of addition that has become an independent patent under section 83.
"Patent Office" means the Patent Office established under this Act.
"patent request" means a request for the grant of a patent to a nominated person.
"patents work" has the meaning given by subsection 201A(2).
"PCT" means the Patent Cooperation Treaty signed at Washington on 19 June 1970, as that treaty is in force for Australia from time to time, together with the Regulations annexed to that treaty, as those Regulations are in force for Australia from time to time.
Note: The text of the Treaty is set out in Australian Treaty Series 1980 No. 6 ([1980] ATS 6). In 2011, the text of a Treaty in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
"PCT application" means an international application in which Australia is specified as a designated State under Article 4(1)(ii) of the PCT.
"permit" , in Chapter 15, has the same meaning as in the Safeguards Act.
"pharmaceutical product" means any patented product, or product manufactured through a patented process, of the pharmaceutical sector.
Example: Examples of a pharmaceutical product include:
(a) active ingredients necessary for manufacturing such a product; and
(b) diagnostic kits needed for using such a product.
"pharmaceutical substance" means a substance (including a mixture or compound of substances) for therapeutic use whose application (or one of whose applications) involves:
(a) a chemical interaction, or physico - chemical interaction, with a human physiological system; or
(b) action on an infectious agent, or on a toxin or other poison, in a human body;
but does not include a substance that is solely for use in in vitro diagnosis or in vitro testing.
"PPI" is short for patented pharmaceutical invention.
"PPI compulsory licence" has the meaning given by section 136D.
"PPI order" has the meaning given by section 136D.
"PPI order applicant" has the meaning given by section 136D.
"PPSA security interest" (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
(a) section 8 (interests to which the Act does not apply);
(b) section 12 (meaning of security interest );
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest , see section 308 of the Personal Property Securities Act 2009 .
"preferred means" :
(a) in relation to filing a document with the Patent Office--means the means specified under subsection 214A(4); or
(b) in relation to paying a fee--means the means specified under subsection 227AAA(4).
"preliminary search and opinion" , in relation to a patent request and complete specification relating to an application for a standard patent, means search and opinion under section 43A.
"prescribed court" means the Federal Court, the Supreme Court of a State, the Supreme Court of the Australian Capital Territory, the Supreme Court of the Northern Territory or the Supreme Court of Norfolk Island.
"prescribed depositary institution" means:
(a) an international depositary authority, whether in or outside Australia; or
(b) any other depositary institution in Australia that is prescribed for the purposes of this paragraph.
"prior art base" means:
(a) in relation to deciding whether an invention does or does not involve an inventive step or an innovative step:
(i) information in a document that is publicly available, whether in or out of the patent area; and
(ii) information made publicly available through doing an act, whether in or out of the patent area.
(b) in relation to deciding whether an invention is or is not novel:
(i) information of a kind mentioned in paragraph (a); and
(ii) information contained in a published specification filed in respect of a complete application where:
(A) if the information is, or were to be, the subject of a claim of the specification, the claim has, or would have, a priority date earlier than that of the claim under consideration; and
(B) the specification was published on or after the priority date of the claim under consideration; and
(C) the information was contained in the specification on its filing date.
[ Note: For the meaning of document see section 2B of the Acts Interpretation Act 1901 .]
"prior art information" means:
(a) for the purposes of subsection 7(1)--information that is part of the prior art base in relation to deciding whether an invention is or is not novel; and
(b) for the purposes of subsection 7(3)--information that is part of the prior art base in relation to deciding whether an invention does or does not involve an inventive step; and
(c) for the purposes of subsection 7(5)--information that is part of the prior art base in relation to deciding whether an invention does or does not involve an innovative step.
"priority date" has the meaning given by subsection 43(2).
"prohibition order" means an order under section 173.
"provisional specification" means a specification filed in respect of a provisional patent application.
"receiving Office" has the same meaning as in the PCT.
"re-examination" means:
(a) in relation to a complete specification relating to an application for a standard patent--the re - examination of the complete specification under Chapter 9; and
(b) in relation to an innovation patent--the re - examination of the innovation patent under Part 2 of Chapter 9A.
"Register" means the Register of Patents mentioned in section 186.
"registered" , in relation to a patent, means entered in the Register of Patents.
"registered patent attorney" means a person registered as a patent attorney under this Act.
"Registrar of Companies of New Zealand" means the person who holds or performs the duties of the office or position of Registrar of Companies under or in accordance with the Companies Act 1993 of New Zealand.
"related company group" means a group of 2 or more companies, where each member of the group is related to each other member of the group.
"relevant authority" means:
(a) in relation to the exploitation of an invention by or for the Commonwealth or an authority of the Commonwealth--the Commonwealth; or
(b) in relation to the exploitation of an invention by or for a State or an authority of a State--the State; or
(c) in relation to the exploitation of an invention by or for a Territory or an authority of a Territory--the Territory.
"relevant international application" , in Chapter 15, means an international application in relation to which the Patent Office is the receiving Office (even if Australia is not specified in the application as a designated State under Article 4(1)(ii) of the PCT).
"relevant Minister" has the meaning given by subsection 163(5).
"relevant proceedings" , in relation to a patent, means court proceedings:
(a) for infringement of the patent; or
(b) for revocation of the patent; or
(c) in which the validity of the patent, or of a claim, is in dispute.
"rules relating to micro-organisms" means such provisions of the Budapest Treaty, and such provisions made by or under regulations made under section 228, as are applicable.
"Safeguards Act" means the Nuclear Non - Proliferation (Safeguards) Act 1987 .
"services" of a relevant authority has a meaning affected by subsection 160A(4).
"specification" , in relation to an international application, means the description, claims, drawings, graphics and photographs contained in the application.
"standard patent" means letters patent for an invention granted under section 61.
"Statute of Monopolies" means the Imperial Act known as The Statute of Monopolies.
"supply" includes:
(a) supply by way of sale, exchange, lease, hire or hire - purchase; and
(b) offer to supply (including supply by way of sale, exchange, lease, hire or hire - purchase).
"Territory" means a Territory in which this Act applies or to which this Act extends.
"therapeutic use" means use for the purpose of:
(a) preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons; or
(b) influencing, inhibiting or modifying a physiological process in persons; or
(c) testing the susceptibility of persons to a disease or ailment.
"this Act" includes the regulations.
"TRIPS Agreement" means the Agreement on Trade - Related Aspects of Intellectual Property Rights set out in Annex 1C to the Marrakesh Agreement establishing the World Trade Organization, done at Marrakesh on 15 April 1994, as Annex 1C is in force for Australia from time to time.
Note: The WTO Agreement is in Australian Treaty Series 1995 No. 8 ([1995] ATS 8) and could in 2015 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).