Patent Law

This subject has the following teaching availabilities in 2016:

136-150 hours

The pre-teaching period commences four weeks before the subject commencement date. From this time, students are expected to access and review the Reading Guide that will be available from the LMS subject page and the subject materials provided by the subject coordinator, which will be available from Melbourne Law School. Refer to the Reading Guide for confirmation of which resources need to be read and what other preparation is required before the teaching period commences.

Applicants without legal qualifications should note that subjects are offered in the discipline of law at an advanced graduate level. While every effort will be made to meet the needs of students trained in other fields, concessions will not be made in the general level of instruction or assessment. Most subjects assume the knowledge usually acquired in a degree in law (LLB, JD or equivalent). Applicants should note that admission to some subjects in the Melbourne Law Masters will be dependent upon the individual applicant’s educational background and professional experience.

The Melbourne Law Masters welcomes applications from students with disabilities. The inherent academic requirements for study in the Melbourne Law Masters are:

• The ability to attend a minimum of 75% of classes and actively engage in the analysis and critique of complex materials and debate;
• The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
• The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and to critically evaluate these;
• The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
• The ability to work independently and as a part of a group;
• The ability to present orally and in writing legal analysis to a professional standard.

Students who feel their disability will inhibit them from meeting these inherent academic requirements are encouraged to contact Student Equity and Disability Support.

For at least 400 years, patent law has been the primary regulatory mechanism for optimising innovation. With more than two million patent applications filed annually around the world, the patent system is both highly complex and of great economic importance. This subject provides the foundational knowledge necessary for a professional understanding of patent law and the patent system. It does so through a combination of instructional sessions and hands-on workshop sessions. These provide students with a detailed understanding of the principles of patent law, with a particular focus on the requirements for the grant of a valid patent and for infringement of a patent. In the workshop sessions, students apply the principles of patent validity and patent infringement to actual prior art, patent claims and infringing embodiments. Successful completion of this subject satisfies the knowledge requirements specified by the Professional Standards Board for Patent and Trade Marks Attorneys for Topic Group E: Patent Law.

Principal topics include:

• History of patent protection
• Rationales for and alternatives to patents
• Trade secrets protection (breach of confidence)
• Patent application procedure and the PCT system
• Patentable subject matter
• Requirements for patentability, including novelty, inventive step and utility
• Section 40 objections—ambiguity, description and disclosure, fair basis and support
• Fraud, false suggestion and misrepresentation
• Infringement, defences and remedies
• Inventorship, entitlement and ownership
• Transfer and exploitation of patent rights
• The impact of competition law
• Future of the patent system.

A student who has successfully completed this subject will:

• Have an advanced and integrated understanding of the principles of Australian law relating to the grant, exercise and exploitation of patents for invention and the protection of undisclosed information outside the patent system, including recent developments in this field of law and practice
• Be able to critically examine, analyse, interpret and assess the effectiveness of these legal rules
• Be an engaged participant in debate regarding emerging and contemporary issues in the field, such as the definition of patentable subject, standards of patentability, the scope of exclusive rights, defences to protection, and the interaction between patents and other areas of legal protection, such as the action for breach of confidence
• Have a sound appreciation of the factors and processes driving governmental and parliamentary revision of the legal framework
• Have an advanced understanding of the situations in which issues relating to the protection, whether by patent or otherwise, of technical innovations made by clients may arise
• Have a an awareness of the legal regimes relating to these areas in an international context
• Have the cognitive and technical skills to generate critical and creative ideas relating to patent law and the law relating to undisclosed information, and to critically evaluate the existing legal principles and policy rationales involved in these forms of protection
• Have the cognitive and technical skills to independently examine, research and analyse existing and emerging legal issues relating to the protection of patents for invention, including standards of patentability, issues of construction and the availability of second tier forms of protection, such as the “innovation patent”
• Have the communication skills to clearly articulate and convey complex information regarding patent law and the protection of undisclosed information to relevant specialist and non-specialist audiences, including clients
• Be able to demonstrate autonomy, judgment and responsibility as a practitioner and learner in the field of patent law.

Take-home examination (100%) (17 - 22 August).

A minimum of 75% attendance is a hurdle requirement.

Core subject materials will be provided free of charge to all students. Some subjects require further texts to be purchased. Details regarding any prescribed texts will be provided prior to the commencement of the subject.

This subject is not available as a breadth subject.

This subject has a quota of 30 students. Please refer to the Melbourne Law Masters website for further information about the management of subject quotas and waitlists.