Commonwealth Numbered Acts

PATENTS ACT 1990 No. 83, 1990 - SCHEDULE 1

                     SCHEDULE 1                       Section 3

DICTIONARY In this Act, unless the contrary intention appears: "application",
in Chapter 15, means a patent application, and includes a relevant
international application; "approved form" means a form approved by the
Commissioner for the purposes of the provision in which the expression
appears; "associated technology" has the same meaning as in the Safeguards
Act; "Australia" includes each external Territory; "Australian continental
shelf" means the continental shelf, within the meaning of the Continental
Shelf Convention, adjacent to the coast of Australia (including the coast of
any island forming part of a State or Territory); "authority", in Chapter 15,
has the same meaning as in the Safeguards Act; "basic application" means an
application for protection in respect of an invention, being an application
made in a Convention country; "Budapest Treaty" means the Budapest Treaty on
the International Recognition of the Deposit of Microorganisms for the
Purposes of Patent Procedure signed at Budapest on 28 April 1977, as that
treaty is in force for Australia from time to time, together with the
Regulations annexed to that treaty, as those Regulations are in force for
Australia from time to time; "claim" means:

   (a)  when used as a noun in relation to a patent - a claim (including a
        dependent claim) of the specification relating to the complete
        application on which the patent was granted; and

   (b)  when used as a noun otherwise than in relation to a patent - a claim
        (including a dependent claim) of a complete specification; and

   (c)  when used as a verb - to claim in a claim (including a dependent
        claim) of a complete specification; "commencing day" means the day on
        which this Act commences; "Commissioner" means the Commissioner of
        Patents; "compensable person" means:

   (a)  in relation to a patent acquired by the Commonwealth - the patentee
        and any person recorded in the Register as having an interest in the
        patent; and

   (b)  in relation to an invention that is the subject of a patent
        application and is so acquired - the nominated person in relation to
        the application; "complete specification" means a specification filed
        in respect of a complete patent application; "compulsory licence"
        means a licence granted under an order made under section 131;
        "Continental Shelf Convention" means the Convention called "Convention
        on the Continental Shelf" signed at Geneva on 29 April 1958, a copy of
        the English text of which is set out in Schedule 1 to the
        Petroleum (Submerged  Lands) Act 1967 ; "Convention applicant", in
        relation to a basic application, means a person (or a body of persons,
        whether incorporated or not) who:

   (a)  has made the basic application; or

   (b)  is the assignee of that applicant; or

   (c)  would, on the grant of a patent on that application, be entitled to
        have the patent assigned to the person; or

   (d)  is the legal representative of a person mentioned in paragraph (a),
        (b) or (c); or

   (e)  has the consent of a person mentioned in paragraph (a), (b), (c) or
        (d) to make a Convention application based on that basic application;
        "Convention application" means a patent application made under Part 2
        of Chapter 8; "Convention country" means a foreign country declared by
        the regulations to be a Convention country for the purposes of this
        Act; "deposit requirements" means the requirements specified in
        paragraphs 6 (a) to (d), inclusive; "depositary institution" means a
        body or institution that receives, accepts and stores micro-organisms
        and furnishes samples of micro-organisms; "Deputy Commissioner" means
        a Deputy Commissioner of Patents; "Director" means the Director of
        Safeguards; "divisional application" means a further application for a
        patent under section 39; "eligible person", in relation to an
        invention, means a person to whom a patent for the invention may be
        granted under section 15; "employee" means a person, other than the
        Commissioner or a Deputy Commissioner, who:

   (a)  is an officer or employee within the meaning of the Public Service Act
        1922 and is employed under the control of the Commissioner; or

   (b)  is not such an officer or employee but performs services, under the
        control of the Commissioner, for or on behalf of the Commonwealth;
        "examination", in relation to a patent request and a complete
        specification relating to an application for a standard patent, means
        an examination of the request and specification under section 45, or a
        modified examination of the request and specification; "exclusive
        licensee" means a licensee under a licence granted by the patentee and
        conferring on the licensee, or on the licensee and persons authorised
        by the licensee, the right to exploit the patented invention
        throughout the patent area to the exclusion of the patentee and all
        other persons; "exploit", in relation to an invention, includes:

   (a)  where the invention is a product - make, hire, sell or otherwise
        dispose of the product, offer to make, sell, hire or otherwise dispose
        of it, use or import it, or keep it for the purpose of doing any of
        those things; or

   (b)  where the invention is a method or process - use the method or process
        or do any act mentioned in paragraph (a) in respect of a product
        resulting from such use; "Federal Court" means the Federal Court of
        Australia; "file" means file with the Patent Office; "foreign
        aircraft" means an aircraft registered in a prescribed foreign
        country; "foreign land vehicle" means a land vehicle owned by a person
        ordinarily resident in a prescribed foreign country; "foreign vessel"
        means a vessel registered in a prescribed foreign country;
        "infringement proceedings" means proceedings for infringement of a
        patent; "interested party", in relation to a patent application, means
        the applicant or a joint applicant, or a person who claims to be
        entitled to the grant of a patent on the application, either alone or
        jointly with another person; "international application" has the same
        meaning as in the PCT; "international depositary authority" has the
        same meaning as in the Budapest Treaty; "international filing date",
        in relation to an international application, means:

   (a)  the date given to the international application as its international
        filing date under Article 11 of the PCT; or

   (b)  if that date is revised under Article 14 of the PCT - that
        international filing date as so revised;
(See also section 10) "invention" means any manner of new manufacture the
subject of letters patent and grant of privilege within section 6 of the
Statute of Monopolies, and includes an alleged invention; "legal practitioner"
means a barrister or solicitor of the High Court or of the Supreme Court of a
State or Territory; "legal representative", in relation to a deceased person,
means a person to whom probate of the will of the deceased person, letters of
administration of the estate of the deceased person, or any other similar
grant, has been granted, whether in Australia or anywhere else, but does not
include such a person who, under the terms of the grant, is not entitled to do
an act in relation to which the expression is used; "licence" means a licence
to exploit, or to authorise the exploitation of, a patented invention; "main
invention" has the meaning given in section 81; "marketing approval", in
relation to a pharmaceutical substance, means the approval of the Secretary to
the Department of Community Services and Health for the marketing of the
substance, or a product containing the substance, in Australia; "marketing
approval certificate", in relation to a pharmaceutical substance, means a
certificate by the Secretary to the Department of Community Services and
Health certifying that he or she has approved the marketing of that substance,
or a product containing that substance, in Australia; "modified examination",
in relation to a patent request and complete specification relating to an
application for a standard patent, means an examination of the request and
specification under section 48; "nominated person" means the person identified
in a patent request as the person to whom the patent is to be granted;
"non-infringement declaration" means a declaration mentioned in subsection 
123 (1); "Official Journal" means the official journal mentioned in
section 222; "patent" means a standard patent or a petty patent; "patent
application" means an application for a standard patent or an application for
a petty patent; "patent area" means:

   (a)  Australia; and

   (b)  the Australian continental shelf; and

   (c)  the waters above the Australian continental shelf; and

   (d)  the airspace above Australia and the Australian continental shelf;
        "patent of addition" means letters patent for an invention granted
        under Chapter 7 and includes, for the purposes of section 25, a patent
        of addition that has become an independent patent under section 84;
        "Patent Office" means the Patent Office established under this Act;
        "patent request" means a request for the grant of a patent to a
        nominated person; "patentable invention" means an invention of the
        kind mentioned in section 18; "patented process" means a process in
        respect of which a patent has been granted and is in force; "patented
        product" means a product in respect of which a patent has been granted
        and is in force; "patentee" means the person for the time being
        entered in the Register as the grantee or proprietor of a patent;
        "PCT" means the Patent Cooperation Treaty signed at Washington on 19
        June 1970, as that treaty is in force for Australia from time to time,
        together with the Regulations annexed to that treaty, as those
        Regulations are in force for Australia from time to time; "PCT
        application" means an international application:

   (a)  in which Australia is specified as a designated State under Article 4
        (1) (ii) of the PCT; and

   (b)  which has been given an international filing date; "permit", in
        Chapter 15, has the same meaning as in the Safeguards Act; "petty
        patent" means letters patent for an invention granted under section
        62; "pharmaceutical substance" means a substance (including a mixture
        or compound of substances) for therapeutic use whose application (or
        one of whose applications) involves:

   (a)  a chemical interaction, or physico-chemical interaction, with a human
        physiological system; or

   (b)  action on an infectious agent, or on a toxin or other poison, in a
        human body; but does not include a substance that is solely for use in
        in vitro diagnosis or in vitro testing; "prescribed court" means the
        Federal Court, the Supreme Court of a State, the Supreme Court of the
        Australian Capital Territory, the Supreme Court of the Northern
        Territory or the Supreme Court of Norfolk Island; "prescribed
        depositary institution" means:

   (a)  an international depositary authority, whether in or outside
        Australia; or

   (b)  any other depositary institution in Australia that is prescribed for
        the purposes of this paragraph; "prior art base" means:

   (a)  in relation to deciding whether an invention does or does not involve
        an inventive step:

   (i)  information in a document, being a document publicly available
        anywhere in the patent area; and

   (ii) information made publicly available through doing an act anywhere in
        the patent area; and

   (iii) where the invention is the subject of a standard patent or an
        application for a standard patent - information in a document publicly
        available outside the patent area; and

   (b)  in relation to deciding whether an invention is or is not novel:

   (i)  information of a kind mentioned in paragraph (a); and

   (ii) information contained in a published specification filed in respect of
        a complete application where:

                (A)  if the information is, or were to be, the subject of a
                     claim of the specification, the claim has, or would have,
                     a priority date earlier than that of the claim under
                     consideration; and

                (B)  the specification was published after the priority date
                     of the claim under consideration; and

                (C)  the information was contained in the specification on its
                     filing date and when it was published; (Note: For the
                     meaning of "document" see section 25 of the Acts 
                     Interpretation Act 1901 .) "prior art information" means:

   (a)  for the purposes of subsection 7 (1) - information that is part of the
        prior art base in relation to deciding whether an invention is or is
        not novel; and

   (b)  for the purposes of subsection 7 (3) - information that is part of the
        prior art base in relation to deciding whether an invention does or
        does not involve an inventive step; "prohibition order" means an order
        under section 173; "provisional specification" means a specification
        filed in respect of a provisional patent application; "receiving
        Office" has the same meaning as in the PCT; "re-examination" means the
        re-examination of a complete specification under Chapter 9; "Register"
        means the Register of Patents mentioned in section 186; "registered"
        means:

   (a)  in relation to a patent - entered in the Register of Patents; or

   (b)  in relation to a patent attorney - entered in the Register of Patent
        Attorneys; "relevant authority" means:

   (a)  in relation to the exploitation of an invention by or for the
        Commonwealth - the Commonwealth; and

   (b)  in relation to the exploitation of an invention by or for a State -
        that State; "relevant international application", in Chapter 15, means
        an international application in relation to which the Patent Office is
        the receiving Office (even if Australia is not specified in the
        application as a designated State under Article 4 (1) (ii) of the
        PCT); "relevant proceedings", in relation to a patent, means court
        proceedings:

   (a)  for infringement of the patent; or

   (b)  for revocation of the patent; or

   (c)  in which the validity of the patent, or of a claim, is in dispute;
        "rules relating to micro-organisms" means such provisions of the
        Budapest Treaty, and such provisions made by or under regulations made
        under section  228 , as are applicable; "Safeguards Act" means the
        Nuclear Non-Proliferation (Safeguards) Act 1987; "sealed" means sealed
        with the seal of the Patent Office; "specification", in relation to an
        international application, means the description, claims and drawings
        contained in the application; "standard patent" means letters patent
        for an invention granted under this Act, but does not include a petty
        patent; "State", in Chapter 17, includes the Australian Capital
        Territory, the Northern Territory and Norfolk Island; "Statute of
        Monopolies" means the Imperial Act known as The Statute of Monopolies;
        "supply" includes supply by way of sale, exchange, lease, hire or
        hire-purchase; "Territory" means a Territory in which this Act applies
        or to which this Act extends; "therapeutic use" means use for the
        purpose of:

   (a)  preventing, diagnosing, curing or alleviating a disease, ailment,
        defect or injury in persons; or

   (b)  influencing, inhibiting or modifying a physiological process in
        persons; or

   (c)  testing the susceptibility of persons to a disease or ailment; "this
        Act" includes the regulations; "work", in relation to a patented
        invention, means:

   (a)  where the invention is a product - make or import the product; or

   (b)  where the invention is a method or process - use the method or process
        or do any act mentioned in paragraph (a) in respect of a product
        resulting from such use; "1952 Act" means the Patents Act 1952; "1989
        Amending Act" means the Patents Amendment Act 1989.