Anmerkungen:
In: University of New South Wales Law Journal, Volume 34, Issue 1, 2011
Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments May, 23 2012 erstellt
Beschreibung:
Patent opposition allows third parties, such as competitors, suppliers, or customers of the patentee, to raise arguments and provide evidence of invalidity to the Patent Office, prior to the patent being finally granted. As a procedure, it has two key objectives acknowledged by courts and policymakers: first, providing an effective means to preclude imprudent (overly broad or invalid) patent grants; and second, achieving the first objective more efficiently than could be achieved through the courts. In order to test whether the Australian pre-grant opposition system achieves these objectives, we constructed a database of all Australian patent applications filed 1980-2005 for which an opposition was filed in the period 1986-2006: a total of 2,361 patent applications. This paper reports the results of analysing that database. The evidence presented in this paper provides a mixed picture, but overall, we conclude that the Australian procedure is sub-optimal: in particular, it is not significantly more efficient than proceedings in court. Based on the data reported here, we propose that reforms should focus on making opposition a distinct, and limited, alternative to litigation, even if that means cutting down the range of issues that may be addressed and hence the set of cases where it will be useful. More broadly, as a detailed empirical study of one particular process, the paper may be of interest to academic debates concerning the effectiveness and design of administrative review procedures in the area of patents and beyond