Ausfta04En

2004 AUSFTA: Australia US Free Trade Agreement Discussion

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Outline

The US government and the Australian patent movement are trying to impose obligations for "strong IP protection" (including software and businesses method patents) on Australia by means of a "Free Trade Agreement".

While the government is pushing the Parliament toward ratification, some political analysts have voiced criticism. The AUSFTA agreement seems to be becoming a focal point of Australia's movement for a free information infrastructure.

Examples of patent-extremist provisions in AUSFTA 17.9

  1. Each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step, and is capable of industrial application. The Parties confirm that patents shall be available for any new uses or methods of using a known product. For the purposes of this Article, a Party may treat the terms "inventive step" and "capable of industrial application" as synonymous with the terms "non-obvious" and "useful", respectively.
  2. Each Party shall provide that a claimed invention is useful if it has a specific, substantial, and credible utility.

This imposes the US interpretation of the term "industrial", thereby excluding the possibility of requiring that a material product must be brought to the market. This goes further than the TRIPs treaty in imposing US interpretations. The only remaining means of excluding immaterial innovation resides in the possibility of interpreting the words "technical" and "invention". However the room for such interpretation is narrow. The requirement that patents shall be available "for any new uses or methods of using a known product" sounds extremely broad and seems to impose business methods.

Moreover the following clause seems to oblige Australia to move only toward unlimited patentability and not away from it. Patent lawyers can and will use this clause to oppose any attempt at defining "technical" or "invention" more strictly than is today the case in the most laxist caselaw:

  1. Each Party shall endeavour to reduce differences in law and practice between their respective systems, including in respect of differences in determining the rights to an invention, the prior art effect of applications for patents, and the division of an application containing multiple inventions.

It would be desirable to explicitely reserve the right of both countries to reverse the unsupervised moves of their judicial systems toward patenting the immaterial.

On the whole, the provisions of section 17.9 are characterised by an interest in securing maximum rights for patent applicants and minimum freedom for all others.

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