-- JonathanMo - 14 Sep 2015

Introduction

Patents, like other intellectual property rights, are a product of the 'balance' between competing interests. From the time a market economy began to develop in Europe, the conferring of monopolies in certain areas has been regarded as necessary to balance the need of society for new inventions with the need of the inventor for some scope for reward. The core of patent activity in the last 50 years or so has shifted from Europe to the United States and Japan.

The origin of patent protection through the granting of letters patent, and the establishment of a patent specification as a technical document which described the invention and claimed an area over which the patentee would have exclusive rights, rests with the Statute of Monopolies 1624 (UK). The Statute declared void all monopolies for the sole buying, selling, making or using of anything in the realm, with the one exception for inventions. Patents for the 'sole working or making of any manner of new manufacture' could be granted for between 14 and 21 years to 'the first and true inventor'. The Crown was seen as having the right to grant monopolies, but this monopoly was a derogation from freedom of trade, and hence required 'consideration moving to the public'. This consideration was the expression of the patented invention with sufficient specificity to enable other people to exploit it when the patent period was over. The Statue of Monopolies is still referred to in Australia's current patent law.

In Australia, patents protection is provided by the Patents Act 1990 (Cth) (PA). It replaces an earlier act of 1952, which was based on the Patents Act 1949 (UK).