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11 Nw. J. Tech. & Intell. Prop. 643 (2012-2013)
Addressing the Impediments Copyright Imposes on the Use of Patent Specifications and Prior Art Documents to Improve Patent Quality

handle is hein.journals/nwteintp11 and id is 697 raw text is: Copyright 2013 by Northwestern University School of Law Volume 11, Number 7 (September 2013) Northwestern Journal of Technology and Intellectual Property Addressing the Impediments Copyright Imposes on the Use of Patent Specifications and Prior Art Documents to Improve Patent Quality By Ben McEniery* This article considers from an Australian perspective the impediments that copyright law places in the path of those who seek to use patent specifications and non-patent prior art documents in ways that are necessary to the proper functioning of the patent system. Until recently, copyright law in Australia had limited the uses to which members of the public could put patent specifications in that country. Those impediments have been removed as a result of an important legislative change to the way in which copyright in patent specifications can be enforced. The change gives the public a greater freedom to make use ofpatent specifications than it enjoyed before, and removes unwarranted restrictions upon the ways in which the public can reuse valuable information. However, what the amendment does not address is the impediments copyright imposes on using non-patent prior art documents in ways that advance the public interest. I. INTRODUCTION .................................... ...... 644 II. PUBLIC INTEREST PROJECTS AFFECTED ...................... 645 III. COPYRIGHT IN PATENT SPECIFICATIONS ............... ...... 647 A. Subsistence of Copyright in Patent Specifications ............... ..... 647 B. Ownership of Copyright in Patent Specifications................ ...... 651 C. The Amendment to Section 226: Dealings with Patent Specifications .............. 663 IV. COPYRIGHT IN PRIOR ART DOCUMENTS ............... ....... 665 A. Prior Art Documents and the State of the Art............ ..... ....... 665 B. Subsistence and Ownership of Copyright in Prior Art Documents ... ...... 666 C. Sections 27 and 28: Notice of Matters Affecting Validity ............... 667 V. VESTING LEGITIMATE RIGHTS IN THE PUBLIC.......... ........ 668 A. Restrictions of the Use of Patent Specifications and Prior Art Documents........ 668 B. Access to Knowledge, Information and Other Public Goods ....... ......... 669 C. Protecting the Legitimate Interests of Copyright Owners ............... 669 VI. CONCLUSION ............................................ 670 BA, LLB (Hons) (UQ), LLM (QUT), PhD (QUT), Senior Lecturer, Faculty of Law, Queensland University of Technology, Barrister-at-Law, Roma Mitchell Chambers, Brisbane.

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