The history of pre-acceptance patent publication in Australia
Apart from a few of the older members of the patent attorney profession in Australia most Australian patent attorneys will not be aware that publication of patent applications 18 months from the earliest priority date is only a recent invention. Up until the 1970s, most countries only published patent applications upon acceptance or grant. In view of difficulties in achieving international harmonisation in relation to other aspects of patent law, it is quite surprising that 18 month publication is now almost universally accepted.
History of publishing patent applications prior to acceptance or grant
As it turns out, Australia was one of the first countries, if not the first country, to introduce a system for publishing patent applications prior to the acceptance or grant. From 1903 to the present Australia has implemented various pre-acceptance publication regimes which have ranged from publishing applications on filing, to publishing applications two years from filing. Publication of applications on filing, which was introduced with retrospective effect in 1946 following the second World War, proved to be particularly contentious, resulting in objections from The Institute of Patent Attorneys, The Chartered Institute of Patent Agents (CIPA) and The British Board of Trade. As a result of these objections agreement was reached with the Government that the Patent Office would delay publication for at least two months following filing.
It is interesting that an issue which has been the subject of so much debate and legislative reform in Australia, capturing the interest of at least two former Australian Prime Ministers, Sir Robert (Bob) Menzies and Gough Whitlam, has been the subject of so little debate in international forums. It is also interesting that pre-acceptance publication at 18 months is now almost universally accepted throughout most jurisdictions, including to some extent the United States which resisted pre-acceptance publication for so long.
Michael Caine, a partner of Davies Collison Cave, published a paper in the August 2009 edition of the IPTA Newsletter which discusses the various pre-acceptance publication regimes which have operated in Australia since 1903 until the present, and the reasons for their introduction. Click here to download.