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5.6.8.10 Mere Working Directions

Date Published

A mere variation in the working of an existing apparatus or process to produce an identical product has traditionally not been patentable. This type of invention is commonly referred to as a "working direction". A variation will be a "mere" variation only if it involves no inventive ingenuity. A variation which may arise in the exercise of an operator's judgement, even accidentally, will be a "mere" variation. See, for example, The Commissioner of Patents v Lee 16 CLR 138, relating to a particular operation of a charcoal-burning kiln, where the specification itself admitted prior use of the kiln.

A claim to a mere working direction may also lack an inventive step and this possibility should always be considered when examining claims of this type.

In some circumstances, it may be difficult to distinguish between a process, such as an industrial process which is patentable, and mere working directions which are not. In particular, chemical processes may sometimes specify directions for operating known machinery at certain temperatures and pressures under stipulated conditions and for determined periods of time. Where the result is new or where an inventive selection is involved, such processes are patentable. Similarly, a process is patentable where the stipulated conditions are such that the person skilled in the art would have applied them without bothering to experiment with them.

In general, the mere optimisation of a known process to more efficiently produce an old product, or to more efficiently operate a known device to produce an old effect, amounts to no more than a working direction provided that result could have been achieved without inventive ingenuity, that is, by trial and error or routine experimentation.

Amended Reasons

Amended Reason Date Amended

Published for testing
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