33 Fed. L. Rev. 239 (2005)
An Empirical Investigation into Patent Enforcement in Australian Courts

handle is hein.journals/fedlr33 and id is 245 raw text is: AN EMPIRICAL INVESTIGATION INTO PATENT
ENFORCEMENT IN AUSTRALIAN COURTSt
Kimberlee G Weatherallt and Paul H Jensen*
I       INTRODUCTION
Patents are growing in importance. Patenting rates worldwide have increased
significantly in recent years: between 1992 and 2002, the number of patent applications
in Europe, Japan and the US increased by more than 40 per cent.1 Patent coverage has
also been extended to include new kinds of inventions, like genetic technologies,2
software,3 and business methods.4 A wider range of participants are also using
patents, with universities being encouraged to increase their patenting activity.5 And
This paper presents results from the IP Enforcement Project at the Intellectual Property
Research Institute of Australia ('IPRIA'), at the University of Melbourne. This project was
commenced in 2003 by Ms Glenys Fraser and both this paper, and the research which it
reports, owe much to the work she did in establishing the project. It also owes much to Mr
Paul Bernath, formerly a researcher at IPRIA and now a solicitor at Aliens Arthur
Robinson, who set up the Database. We thank them both - this project would not have
happened without them. Thanks also to our researchers: Ms Nitsa Karahalios, Ms Sarah
Moritz, Ms Sally Pryor and Mr Edward Sexton. Reading hundreds of cases and coding
them is highly skilled and not easy work. More general thanks to the many from the bar
and profession who were consulted in setting up the project and to the Federal Court for its
assistance on various matters. We also thank those who attended seminars at ANU and at
IP Australia, where presentations on this research were given, for their feedback. Two
anonymous referees also provided extensive and useful suggestions. All errors remain the
authors' own.
t    Associate Director (Law), IPRIA, Lecturer in Law, University of Melbourne.
Research Fellow, IPRIA and Melbourne Institute of Applied Economic and Social Research,
University of Melbourne.
1    Organisation for Economic Co-operation and Development ('OECD'), Patents and
Innovation: Trends and Policy Challenges (2004).
2    Diamond v Chakrabarty, 447 US 303 (1980); IP Australia, Australian Patents for Biological
Inventions (2005) <http:/ / www.ipaustralia.gov.au/ pdfs/patents/specific/ biotech.pdf> at
29 May 2005; Kiren-Amgen Incorporated v Board of Regents of University of Washington (1995)
33 IPR 557.
3    Diamond v Diehr, 450 US 175 (1981); CCOM Pty Ltd v Jiejing Pty Ltd (1994) 51 FCR 260.
4    State Street Bank & Trust Co v Signature Financial Group, 149 F 3d 1368 (Fed Cir, 1998); see
also Welcome Real-Time SA v Catuity Inc (2001) 113 FCR 110; Application by Grant (2004) 62
IPR 143.
5    See, eg, Bayh-Dole Act of 1980, 35 USC § 200 (1980) et seq.

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