8.4.2 Prior Art Information

Also in this Chapter:

• 8.4.1 Introduction​​​​​​​

• 8.4.3 Exclusion

• 8.4.4 Doctrine of Mechanical Equivalents

• 8.4.5 Basis of the ＂Whole of Contents＂ Objection

Key Legislation:

Patents Act:

• s45 Examination
• s48 (Superseded)
• s101B Examination of an innovation patent
• s158 Appeals
• Schedule 1 Dictionary

When considering the novelty of a claim of a standard patent application or an innovation patent, the relevant prior art information is defined in schedule 1.  For the purposes of examination, the prior art is restricted to the following:

• information in a document that is publicly available before the priority date, whether in or out of the "patent area" (i.e. Australia, Australian continental shelf, etc - see schedule 1); and

• information contained in certain Australian patent specifications published after the priority date of the claim under consideration (see 2.4.11 "Whole of Contents").  

There is no time limit operating to exclude a document from consideration because it is 'too old'. This is in contrast to the '50 year rule' formerly provided by s158 of the 1952 Act.

Note: During the examination of an application for a standard patent, or examination of an innovation patent, information made publicly available only through doing an act is to be disregarded (s45(1A), s48(1A) and s101B(3)).  "Doing an act" includes making an oral disclosure.