-- JonathanMo - 14 Sep 2015

Exploitation of patents

Exclusive rights conferred by section 13(1) of the PA gives a patent holder 'the exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention'. Exploitation includes producing, using, selling, or importing the invention. Patents are personal property and can be sold, hired, licensed, other wise assigned or inherited [PA ss.13(2), 120].

The term of protection is 20 years from the date of filing of the complete specification in the case of standard patents, and eight years for an innovation patent [PA ss. 68-70]. However, the annual renewal fees for patent registrations must be paid or the patent and its protection will lapse [PA s.143].

The PA does not contain any provisions dealing with ownership of patents for inventions made by employees. Thus, in the absence of contractual provisions, the same tests as for copyright will apply. In England, statutory modifications to the common law position state that an invention made by an employee shall be taken to belong to the employer if it was made in the course of normal duties but section 41 of the UK Act specifies that an award for compensation shall be made to an employee who arrives at a patentable invention, such as to secure for the employee a fair share of the benefit which the employer will derive. The courts in Australia have found an implied right in an employer to assignment of intellectual property rights created by an employee in the course of employment.