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  • What can and can not be patented – overview

    In short, in Australia, an invention capable of being patented:

    • has an industrial, commercial or trading character;
    • belongs to a useful art as distinct from a fine art; and
    • has economic value.

    Some types of ideas can not be patented. The following are not, for example, patentable:

    • A discovery without any useful application or means of bringing it into affect.
    • A law of nature.
    • A mere idea, for example an abstract idea.
    • Mere schemes or plans.
    • The mere presentation of information.
    • Scientific theories, intellectual information, mathematical algorithms without application. The question to be asked is if the invention of an intellectual or academic nature, or does it belong to a technical or practical area.
    • The fine arts, for example an expression of beauty or other content through painting, music, or sculpture is not patentable.

    Some types of ideas can be patented. In Australia, these are called “manners of manufactures”. This is not to mean that an idea is not palatable because it is not a manufacture but rather that to be patentable the idea must fall within certain legal principles that have developed over hundreds of years, and collectively these legal principles are known as “manner of manufacture”.  The concept of manner of manufacture originated in section 6 of the English Statue of Monopolies of 1624.

    The watershed case that considered Manner of Manufacture is National Research Development Corporation v Commissioner of Patents (“NRDC” case) [1959] HCA 67. Their Honours stated that it was a mistake to ask “is this a manner or kind of manufacture”. It is a mistake which tends to limit one’s thinking by reference to the idea of making tangible goods by hand or by machine. The right question is “is this a proper subject of letters patent according to the principles which have been developed for the application of section 6 of the Statute of monopolies”.

    Furthermore, trying to precisely define manufacture is bound to fail. The purpose of section 6 was to encourage national development in a field which already in 1623 was seen to be excitingly unpredictable. It would be unsound to the point of folly to attempt to do so now. The concrete applications of the notion which were familiar in 1623 can be seen to provide only the more obvious not to say the more primitive, illustrations of the concept.

    There Honours emphasised that the correct emphasis is that application of a manner of manufacture results in an artificially created state of affairs, and that a manner of manufacture has an industrial, commercial or trading character in that it belongs to a useful art as distinct from a fine art, and consequently its value to the country is in a field of economic endeavour.