Patents Act 1990
No. 83, 1990
Compilation No. 52
Compilation date: 14 October 2024
Includes amendments: Act No. 39, 2024
About this compilation
This compilation
This is a compilation of the Patents Act 1990 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Chapter 1—Introductory
1 Short title
2 Commencement
2A Object of this Act
3 Definitions
5 Associated applications
6 Deposit requirements
7 Novelty, inventive step and innovative step
7A Meaning of useful
9 Secret use
10 Certain international applications to be taken to have been given an international filing date
11 Act binds the Crown
12 Application of Act
12A Application of the Criminal Code
Chapter 2—Patent rights, ownership and validity
Part 1—Patent rights
13 Exclusive rights given by patent
14 Assignment of patent
Part 2—Ownership
15 Who may be granted a patent?
16 Co‑ownership of patents
17 Directions to co‑owners
Part 3—Validity
Division 1—Validity
18 Patentable inventions
19 Certificate of validity
20 Validity of patent not guaranteed
21 Validity not implied by making or refusal of non‑infringement declaration
Division 2—Matters not affecting validity
22A Validity not affected by who patent is granted to
22 Invalidity in relation to one claim not to affect validity in relation to other claims
23 Validity not affected by publication etc. after priority date
24 Validity not affected by making information available in certain circumstances
25 Validity: patents of addition
26 Validity not affected in certain cases involving amendments
Division 3—Notice of matters affecting validity
27 Notice of matters affecting validity of standard patents
28
Overview
The Patents Act 1990, enacted by the Commonwealth Parliament, was introduced to address the need for a comprehensive and modern patent system in Australia. The Act replaced the outdated Patents Act 1952, aiming to foster economic growth and innovation by providing clear and effective legal protections for inventions. The primary objective of the Patents Act 1990, as stated in section 2A, is to establish a patent system that promotes economic wellbeing through technological innovation, while balancing the interests of patent owners, users of technology, and the public at large. This legislation has been subject to numerous amendments over the years to align with evolving technological advancements and international standards, ensuring that Australia remains competitive and supportive of innovation in a global context.
Scope and Application
The Patents Act 1990 is a Commonwealth statute that establishes the legal framework for patents in Australia. It applies to all persons and entities within the patent area, which includes Australia, the Australian continental shelf, the waters above the continental shelf, and the airspace above Australia. The Act binds the Crown and extends to external territories, as well as the Australian continental shelf and its waters and airspace. The Act governs the process of patent application, examination, and grant for both standard and innovation patents. It delineates the rights and obligations of patentees, including the exclusive right to exploit the patented invention, and outlines conditions for patent validity, opposition, revocation, and compulsory licensing. The Act also provides for the administration of the patent system by the Commissioner of Patents and the Patent Office, and includes provisions for the regulation of patent attorneys and the protection of patent information. Specific exclusions apply, such as the non-patentability of human beings, plants, and animals under standard patents, and certain exemptions for acts done for experimental purposes or to obtain regulatory approval. The Act allows for its provisions to be extended or restricted through subordinate instruments, such as regulations and directions issued by the Commissioner.
Key Provisions
- The Patents Act 1990 (Act) provides a framework for the granting of patents in Australia, covering the rights, obligations, and procedures relating to patents. Section 13 of the Act establishes the exclusive rights granted by a patent, which include the right to exploit the invention and to authorise others to do so. Section 14 details the process of assigning a patent, requiring it to be in writing and signed by or on behalf of the assignor and assignee. Ownership of a patent is outlined in section 15, which permits patents to be granted to the inventor, those entitled to the invention, or legal representatives of deceased inventors. The validity of patents is addressed in sections 18 and 19, specifying that a patent does not guarantee its validity and that a patent can be certified as valid by the court if disputed. The Act also imposes various obligations on parties, such as the requirement for patent applications to be filed in English (section 29), for complete specifications to fully disclose the invention (section 40), and for patent attorneys to be registered (section 198).
- Breach of the Act’s provisions can lead to several consequences. Section 177 makes it an offence to make false representations about the Patent Office, with a penalty of 30 penalty units. Similarly, section 178 penalises false representations about patents or patented articles, also with a penalty of 30 penalty units. Section 182 prohibits officers from trafficking in inventions, with a penalty of imprisonment for 2 years. Section 201A imposes penalties on individuals and entities acting as patent attorneys without being registered, with fines ranging from 30 to 150 penalty units depending on the type of entity. Unauthorised disclosure of information by employees is addressed in section 183, which carries a penalty of imprisonment for 2 years. Furthermore, section 185 outlines that the Commissioner, Deputy Commissioner, or employees must not prepare documents or search records for patents, also punishable by imprisonment for 2 years if violated.
- In terms of civil and criminal consequences, section 126A provides for the revocation of innovation patents under specific circumstances, and section 136N allows for the surrender and revocation of patents by the patentee or through court orders. Section 132B and 136C provide for the grant of compulsory licences under certain conditions, including public health emergencies. Section 173 allows the Commissioner to issue prohibition orders to prevent the publication of information about inventions if it is deemed necessary for national defence or security. Finally, section 175 makes it an offence to disclose information to the Commonwealth authority without consent if it concerns inventions or patented articles, with a penalty of imprisonment for 2 years. These provisions ensure that the Act's objectives of promoting innovation while protecting public interests are upheld.
- Area of Law
- Intellectual Property Law
- Commercial Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Commencement Provisions
- Patentable Inventions
- Infringement and Infringement Proceedings
- Licensing & Registration
- Infringement Exemptions
- Revocation of Patents
- Compulsory Licences