2.15.2 Misleading, Unfair or Derogatory References

Date Published

An application should not proceed to acceptance while it contains misleading, unfair or derogatory references to another Australian application or patent, or the invention thereof (see Wadham's Application (1910) 27 RPC 172 and Ehrig's Application (1933) 50 RPC 176).

Situations of this kind are rare, since claiming an advantage over the prior art is not in itself objectionable. For example, in the case of a selection, the specification must describe the advantage possessed by the selected members and upon which the selection is based ( Selection Specification Must Describe Advantage). Similarly, applicants may distinguish their invention from the prior art and no objection should be taken to statements such as "the process of Australian specification ..... gives a yield of .....% while the process of the present invention yields 20% more".  

Where a specification contains misleading, unfair or derogatory references, the case should be referred through a supervising examiner to the Assistant General Manager (OEP) for a determination of any matters to be communicated to the applicant in this regard.