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The definition of "invention" given in schedule 1 states that invention:

"includes an alleged invention".

The High Court in Advanced Building Systems Pty Ltd and Anor v Ramset Fasteners (Aust) Pty Ltd (1998) 152 ALR 604; (1998) AIPC 91-401; 40 IPR 243, explained this as follows:

"The phrase 'and includes an alleged invention' is directed to the inquiry at the stage of examination of an application before the decision as to acceptance."

The Court followed the earlier decision of Commissioner of Patents v Microcell Ltd (1959) 102 CLR 232 (1959) 102 CLR 232 at page 236, in which Menzies J stated:

"... I regard the last words of the definition of "invention" (which have their origin in the Patent Design and Trade Marks Act 1883, sec 46) as intended to do no more than make clear that when an application is made it can proceed in accordance with the Act without the application having to establish as a pre-requisite to any step being taken that it is for an invention, i.e. a manner of new manufacture and that the Commissioner is not bound by the applicant's allegation that his manner of manufacture is new any more than by the allegation that what is claimed is a manner of manufacture."

(see also Rogers v Commissioner of Patents (1910) 10 CLR 701).

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