An apparently important decision regarding what is and is not patentable subject matter in Australia has come to the attention of the IPKat, courtesy of the Australian & New Zealand IP law blog from IP lawyers Philips Ormonde & Fitzpatrick. The decision (available in full here) concerns an invention relating to the new and exciting science of subtronics, which the IPKat was previously unfamiliar with. The claimed invention in Australian patent application 2003208113 by inventor Milton Edgar Anderson reads as follows:
1. The complete absence of any precedent or any assistance whatever from the scientific fraternity following the early disclosure of the existence of electrosubtronic fields that started with a letter to the CSIRO in Australia dated 23rd February 1999 has culminated in the discovery of the neutrino atom by splitting the electron thus conclusively confirming the existence of a nonmaterial of spiritual DNA through which God has conveyed the information to mankind that has enabled me to disclose new laws of electric induction that have been hidden from science for over 200 years due to a misinterpretation of the electrophorus invented by Volta in 1775 thus isolating the conceptual core of quantum theory in placing God as the principle arbitrator in the new science of subtronics that will guide mankind into the next millennium in establishing that God created the universe.
2. A practical application of the newly discovered laws of electric induction of claim 1 in providing the highly efficient automatic traction motor or ATM described in the Provisional Patent Specification.
3. Any new application of the new laws of electric induction claimed in claim 2.
4. Any improvement to an existing electromagnetic device or motor by employing the new laws of electric induction claimed in claims 1, 2 and 3.
5. Any new communication method derived from the new laws of electric induction of claim 1.
6. Any new computer or other device attributable to the disclosure of the neutrino atom and/or antimatter radiation.
One part of the specification illustrated the concept of subtronics through the use of an experimental set up (shown above right) including a vehicle spark coil, spaced brass rods, a plastic drinking straw and an oscilloscope, which was said to confirm the discovery of the neutrino atom and disprove the electron as being an indivisible unit of negative electricity.
The patent examiner had objected that the claims did not define any invention, and that the application did not pass the Australian patentability test of relating to "a manner of manufacture". The applicant was, after a total of ten examination reports, unable to move the examiner and the case then came to be decided by a Deputy Commissioner of Patents, who had little hesitation in agreeing with the examiner, adding:
"While expressed in an unconventional way, it appears that what is intended to be claimed is the discovery of “a new law of electric induction” or “the new science of subtronics” and, very broadly, the application of that “law”. I do not intend to make any judgement on the merit or validity of the applicant’s scientific theories however, from the specification, the applicant’s own submissions and my own knowledge of the field I would conclude that the applicant’s views on these matters are unlikely to be shared by many if any of the persons skilled in the relevant arts and particularly theoretical physicists or electrical engineers working in the field of motor design. It would also seem the case that in describing a new science or “law” the description falls far short of enabling those persons to understand the discovery said to be made or any application of it. Certainly the type of experiment referred to in the description or the submissions is not capable of altering that situation and similarly since the issue here is not one of utility I do not believe anything would be gained from attending the demonstration offered by the applicant.The IPKat will leave any interested readers to figure out for themselves whether there was indeed anything patentable in Mr Anderson's application, but thinks that the judicious use of quotation marks in the decision seems to say as much about what the Delegate thought of the invention itself as the inventor's unconventional use of capitalisation in his application says about his state of mind. Merpel, however, just thinks that Australian patent examiners must have too much time on their hands.
There are limits to the subject matter for which a patent can be granted aside from the requirement that a claimed invention be novel and non-obvious. It must also be a manner of manufacture. This term derives from the Statute of Monopolies of 1623 and reflects a balance between those activities and developments to which society wishes to encourage by the grant of a patent and those to which granting patent rights is considered inappropriate. These notions have evolved over time however certain fields have always been excluded including expressions of human intellectual activity relating to literature, music and other of the fine arts. More relevantly to the current situation, discoveries of the laws of nature or science, scientific theories, ideas, mere schemes and plans and mathematical algorithms per se have also been regarded as not exhibiting the requirements of a manner of manufacture. This does not mean those activities are not important but simply do not reflect the fields of human endeavour for which a patent should be granted. Of course an application of a law or principle of science producing a particular practical and useful result is a different matter and is likely to fall within the scope of patentable subject matter."