The reform challenge: Australian patent law and the emergence of 3D printing

Abstract

Australian patent law has been in a state of flux for almost two decades. Incrementally retrofitting patent law has been an inevitable consequence of technological developments that have brought into question its role in facilitating innovation. Originally conceived to stimulate local innov­ation, the role of patent law has changed over time, as has its capacity to adapt and continue to protect innovation in the face of vast and frequent technological developments. The extent to which patent law enables socially beneficial innovation is questionable in the digital and biotechnological environments. Tradition­ally a protector of functional products within the realm of machines and manufacturing, patent law has become a broader vehicle for the protec­tion of informational and animate subject matter. Business methods, software and biological materials have been accepted as patentable subject matter across many jurisdictions. Policy- and law-makers have not found these developments easy to contend with. In the Australian context, for example, agencies at the legal / policy interface grapple to understand the social benefits and costs wrought by expansions in patentable subject matter into new areas of technology. The difficulty in identifying benefits has led to a call by the Australian Productivity Commission in its draft report on intellectual property (IP) arrangements to exclude business methods and software from patentability under the Patents Act 1990 (Cth) (the 'Patents Act'). Notably, this recommendation did not survive to the final report.