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The patentability of non-physical inventions : lessons from the United States

McEniery, Benjamin J. (2009) The patentability of non-physical inventions : lessons from the United States. Monash University Law Review, 35(2), pp. 376-421.

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    Abstract

    Patent systems around the world are being pressed to recognise and protect challengingly new and exciting subject matter in order to keep pace with the rapid technological advancement of our age and the fact we are moving into the era of the ‘knowledge economy’. This rapid development and pressure to expand the bounds of what has traditionally been recognised as patentable subject matter has created uncertainty regarding what it is that the patent system is actually supposed to protect. Among other things, the patent system has had to contend with uncertainty surrounding claims to horticultural and agricultural methods, artificial living micro-organisms, methods of treating the human body, computer software and business methods. The contentious issue of the moment is one at whose heart lies the important distinction between what is a mere abstract idea and what is properly an invention deserving of the monopoly protection afforded by a patent. That question is whether purely intangible inventions, being methods that do not involve a physical aspect or effect or cause a physical transformation of matter, constitute patentable subject matter. This paper goes some way to addressing these uncertainties by considering how the Australian approach to the question can be informed by developments arising in the United States of America, and canvassing some of the possible lessons we in Australia might learn from the approaches taken thus far in the United States.

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    ID Code: 34453
    Item Type: Journal Article
    Keywords: patent, intellectual property, physical effect, patentable subject matter, physicality, grant, bilski
    ISSN: 0311-3140
    Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100)
    Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Intellectual Property Law (180115)
    Divisions: Current > QUT Faculties and Divisions > Faculty of Law
    Current > Schools > School of Law
    Copyright Owner: Copyright 2009 Monash University
    Deposited On: 13 Sep 2010 11:43
    Last Modified: 01 Mar 2012 00:10

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