-- JonathanMo - 14 Sep 2015

Inventions which are not patentable

The 'human being' exception

Human beings, and the biological processes for their generation, are not patentable inventions [PA s.18(2)]. It remains questionable whether this applies to embryos and embryonic cells and tissue. The Australian Patent Office Manual of Practice and Procedure, Vol 2 - National, para 8.5.1, expresses the view that patenting of human genes, tissues and cell lines is not prohibited [PA s.18(2)].

A greater degree of exclusion from patentability is stipulated in respect of innovation patents (see The different types of applications and patents) - namely plants and animals, and the biological processes for the generation of plants and animals [PA s.18(3)]. However, this exclusion does not apply if the invention is a microbiological process or a product of such process.

Section 50(1) of the PA also allows (but does not require) the Commissioner of Patents to refuse to grant a patent for a substance that is capable of being used as a food or medicine for human beings or animals and is a mere mixture of known ingredients.

'Generally inconvenient' and 'contrary to law'

Traditionally, these two grounds have been considered sufficient to reject a patent under the 1624 Statute of Monopolies. See Re Rolls Royce's Application [1963] RPC 251, where the application was rejected on the ground that to allow a patent for an efficient method of flying a plane would represent a dangerous restriction on a pilot's ability to fly a plane safely.

The 'contrary to law' exception is also found in section 50(1)(a) of the PA, which gives the Commissioner discretion to refuse to accept a patent request or to grant a patent for an invention where its use would be 'contrary to law'.

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