David Brennan - The trouble with legislating exclusions from the concept of invention
Recent developments in Europe have highlighted the questionable desirability of the threshold entitlement to patentability being subjected to a shopping-list of exclusions. Unease sometimes exists as to the nature of (eg genes), scope of (eg software), or lack of economic need for (eg business methods) patent rights in particular fields. While TRIPS mandates the availability of patent rights in all fields of technology, without discrimination between fields of technology, it also permits some latitude to create exclusions. Australia has largely chosen not to go down the path of defining threshold patentability by reference to excluded subject matter. While this is sometimes the subject of questioning, for the time being in Australia the push to define categories of excluded subject matter in the field of biotechnology has been rejected by the Australian Law Reform Commission.
(2008) 19 AIPJ 6 - David J Brennan B Comm LLB(Hons), PhD GCertUniTeach (Melb) Associate Professor, University of Melbourne Law School