2 min read

An Australian court has provided a clear signal that inventions derived from machine learning activities can be subject to valid patent applications, provided they satisfy the regular indicia of inventiveness and novelty, whilst lacking a human inventor.

In Thaler v. Commissioner of Patents [2021] FCA 879, Justice Beach adopted an expansive view of the Patents Act, to hold that the concept of inventor can include, within its ambit, the notion of a suitably programmed computational device.

It is evident from the design of advanced AI systems such as Alphafold and AlphaGo, that the frontier of machine learning systems is in a continued state of rapid evolution. Whilst his honour spent significant portions of the judgement attempting to define the evolving concept of Artificial Intelligence, he was clear in holding that the innovative product of such systems can be subject to protection, whilst simultaneously lacking a human “inventor”.

In a distinct recognition of the importance of such advances to a society, his honour noted at [56]:

Now I have just dealt with one field of scientific inquiry of interest to patent lawyers.  But the examples can be multiplied.  But what this all indicates is that no narrow view should be taken as to the concept of “inventor”.  And to do so would inhibit innovation not just in the field of computer science but all other scientific fields which may benefit from the output of an artificial intelligence system.

The contrast between this liberal interpretation of our Patents Act’s application to machine learning inventions, as compared with the courts lack of clarity in the general field of software type of inventions is quite stark. However, the decision provides clear directions to the Australian Patent Office that AI advances should be readily patentable.

Authored by Peter Treloar

6 min read

Ariosa Diagnostics, Inc v Sequenom, Inc [2021] FCAFC 101

The Full Court of the Federal Court of Australia has confirmed that Sequenom’s diagnostic method of detecting fetal DNA in maternal blood is eligible for patent protection in Australia.  The decision highlights the different approaches taken by Australian, European and US authorities when it comes to assessing the patentability of diagnostic methods.

However, the Full Court also found that Sequenom’s patent was not infringed by the importation of results from tests conducted overseas on the basis that the results were information and not a product that could be exploited.

The technology

Sequenom’s patent stemmed from the discovery of cell-free fetal DNA (cffDNA) in maternal blood serum and blood plasma by two researchers from Oxford University. The discovery enabled the development of a non-invasive prenatal test using maternal blood samples. 

The test could be used to determine the gender of an unborn baby, and its susceptibility to certain genetic conditions. Prior to the inventors’ discovery, obtaining a prenatal sample for testing typically involved inserting a needle through the mother’s abdomen or cervix. 

The patent

Claim 1 of Sequenom’s patent defines:

A detection method performed on a maternal serum or plasma sample from a pregnant female, which method comprises detecting the presence of a nucleic acid of foetal origin in the sample.

In the first instance decision, the Federal Court of Australia found that the use of the “Harmony” prenatal diagnostic test by Ariosa Diagnostics Inc, and by its licensees, Sonic Healthcare Limited and Clinical Laboratories Pty Ltd, infringed certain claims of Sequenom’s patent. On appeal, Ariosa challenged the validity of the claims and the finding of infringement.

Validity

Ariosa argued that the primary judge erred in finding that the claimed method is a “manner of manufacture” as required under the Patents Act because what is claimed is a mere discovery of a naturally occurring phenomenon. In a related submission, Ariosa contended that, properly understood, the end result of each claim is mere information.  The human-mediated “detection”, Ariosa argued, is no different from the discovery that cffDNA is detectable. Ariosa submitted that in substance there is no application of the discovery by simply claiming the detection of what has been discovered to exist. 

In support of their arguments, Ariosa cited D’Arcy v Myriad Genetics Inc [2015] HCA 35, in which the High Court found that claims defining isolated nucleic acids encoding mutant or polymorphic BRCA1 polypeptides were in substance directed to naturally occurring genetic information, which is not patentable subject matter.

The Full Court rejected Ariosa’s approach, finding that it disaggregated the discovery of cffDNA in maternal plasma or serum from the method used to harness that discovery. Although fetal nucleic acid occurs in nature, the Full Court found that the substance of the invention is not cffDNA itself, but the identification of that particular nucleic acid as a part of a method:

Unlike the position in Myriad, claim 1 is not, as a matter of substance, directed to genetic information, but to a method involving the practical application of a means for identifying and discriminating between maternal and foetal nucleic acid. Although foetal nucleic acid occurs in nature, the substance of the invention is not cffDNA itself, but the identification of that particular nucleic acid as a part of a method. It is impermissible to disaggregate the integers of the method to point only to the cffDNA as the “invention”. Identification of the substance of the invention does not involve disregarding material aspects of the claim language. The invention as claimed is not merely output, but the detection process which yields an output. This is the very type of subject matter considered to fall on the correct side of the line between discovery of a scientific fact or law of nature and invention (at [155]).

Their Honours observed that an invention may reside in an abstract idea that is put to a useful end, even though the way of putting it to that end can be carried out in many useful ways, all of which are otherwise known. While the mere discovery of a natural phenomenon is not eligible for a patent, the practical application of that discovery may very well be patentable subject matter.

The Full Court concluded that the invention defined by claim 1 of Sequenom’s patent ”falls firmly within the concept of a manner of manufacture as that term is to be understood having regard to the authorities, being an artificially created state of affairs of economic utility” (at [166]).

Ariosa’s other grounds of attack, namely, that the claims were invalid for lack of sufficiency and lack of fair basis, were also unsuccessful.

Infringement

Before conducting the Harmony Test in Australia, Ariosa’s Australian licensees, Sonic Healthcare and Clinical Laboratories, collected blood samples from pregnant women in Australia and sent those samples to Ariosa in the US. Ariosa then conducted the Harmony Test in the US and provided the results, in the form of a report made available by a file sharing platform, to Sonic Healthcare and Clinical Laboratories in Australia. 

The exclusive rights of a patentee to exploit an invention will ordinarily be infringed by importing the product of a patented process, even when that process is carried out overseas. This is because Australia’s Patents Act defines the term “exploit” as including:

where the invention is a method or process – use the method or process or do [acts including importing] in respect of a product resulting from such use.

The primary judge found that the method was infringed when it was performed in Australia, which was not in dispute in the present case. However, the primary judge also found that Sonic Healthcare’s and Clinical Laboratories’ “send out” model amounted to an infringement of Sequenom’s claims because it used a method that would have infringed the claims if conducted in Australia.

The Full Court disagreed, noting that the Patents Act does not provide a definition of the term “product”. Their Honours preferred a construction of the word “product” in the context of the definition of “exploit” which recognises that not all patented methods or processes will lead to a product. The Full Court observed that the broad definition applied by the primary judge could have consequences that are not sensible – a person who has heard the outcome of the Harmony Test, which may be as simple as “it’s a girl!”, and who then flies to Australia with that information may infringe the patent by importing that outcome.

The Full Court also noted the incongruity that would result from extending the patentee’s monopoly to encompass test results that are not them themselves patentable:

A claim to mere information is not patentable …. The fact that such information is derived from a patentable process or method cannot render the information itself patentable. In those circumstances, we do not consider that the word “product” in para (b) of the definition of “exploit” should be interpreted as extending the patentee’s monopoly to information which could not itself constitute patentable subject matter since it would have the unintended and odd consequence of permitting the patentee to obtain patent protection in respect of subject matter that has long been held to be unpatentable (at [269]).

Accordingly, because the imported test results are themselves information, and not a “product” as such, Sonic Healthcare’s and Clinical Laboratories’ send out model did not infringe Sequenom’s patent.  

Final comments

The Full Court’s decision highlights the different approaches taken by Australian, European and US authorities when it comes to assessing the patentability of diagnostic methods.  The corresponding patent application was found to be valid in the UK (Illumina, Inc v Premaitha Health Plc [2017] EWHC 2930), albeit under a different eligibility test, but was deemed invalid by the US Court of Appeals for the Federal Circuit (Ariosa Diagnostics, Inc. v Sequenom, Inc. 788 F.3d 1371 (Fed. Cir. 2015)).

In Australia, courts will construe a claim in its entirety, rather than considering each feature individually. While the mere discovery of a natural phenomenon may not be eligible for a patent in Australia, the practical application of that discovery may very well be, even where the application uses known methods.

The decision also confirms that not all patented methods will give rise to a “product” that can be exploited in an infringing act.

Ariosa and Sequenom have the option of applying for special leave to appeal the decision to the High Court. 

Authored by Karen Heilbronn Lee, PhD and Michael Christie, PhD

1 min read

IAM Patent 1000: The World’s Leading Patent Professionals 2021 has again Highly Recommended Shelston IP for Patent Prosecution.

Shelston IP has not only been Highly Recommended by IAM Patent 1000 for Patent Prosecution, we have also been Recommended for both our Litigation and Transaction work.

Our attorneys also continue to be ranked with Michael Christie, PhD, Paul Harrison and Greg Whitehead listed as Highly Recommended for Patent Prosecution together with Chris Bevitt for his Transaction work.

Congratulations to all our ranked attorneys.

Authored by Chris Bevitt, Michael Christie, PhD, Paul Harrison and Greg Whitehead

1 min read

Shelston IP is very pleased to announce their promotions from 1 July 2021.

Ean Blackwell is our newly appointed Principal.

Ean works within our Biotechnology and Chemistry team. Ean is an AU/NZ Patent Attorney, a Chartered UK and a European Qualified Patent Attorney with industry experience as a research scientist. Ean’s IP career has spanned three continents, having practiced in Asia, Europe and Australia. He has particular experience in the plant molecular biology, biotechnology and Big Pharma industry sectors.

Kathy Mytton has also been elevated to Senior Associate.

Kathy is a solicitor and registered trade mark attorney with over 20 years’ experience across a broad range of industries for protection of trade mark rights in Australia, New Zealand and other foreign jurisdictions. She has extensive proven experience in providing strategic and commercially focused advice to clients.

Congratulations on this important milestone in your career.

Authored by Ean Blackwell and Kathy Mytton

1 min read

Shelston IP has once again been named as a finalist in the Australian Law Awards for Intellectual Property Team of the Year.  

The Australian Law Awards, run in partnership with Principal Partner UNSW Law & Justice. The awards program identifies the finest lawyers and firms across Australia, recognising the depth of talent and outstanding achievements.

The annual event presents an invaluable opportunity to highlight the notable achievements of lawyers at the height of their career who demonstrate leadership, technical expertise, mentorship and business development skills – the only national awards program to do so.

The awards program bestows some of the industry’s most respected and sought-after accolades showcasing outstanding performance by partners, or partners equivalent, across individual practice areas within the Australian legal profession.

Once again this recognition reinforces the strength of our formidable team. They consistently build strong relationships with their clients, who then in turn have confidence in service we provide.

Authored by Duncan Longstaff

4 min read

The abolition of Australia’s second-tier “innovation patent” system has been well publicised and comes with a “magic date” of 25 August 2021.  But what does “abolition” really mean, and what can’t you do come 26 August 2021 that you could do one day prior?  In this article, we break it all down and let you know what you really need to know – so that there are no nasty surprises down the line.

What must I do on or before 25 August 2021?

This is perhaps the most critical (and misunderstood) aspect of the changes.  In order for a new innovation patent to be filed validly, it must come with a filing date of 25 August 2021 or earlier.  Now, for applications already filed in Australia (convention or national phase) or existing PCT international phase applications designating Australia, this is not a problem – your ability to make use of the innovation patent system is maintained (subject to certain caveats, see below).

However, for inventions currently covered by provisional applications (or even awaiting provisional filing), this is where things start to get interesting.  You will need to file “early” (i.e., obtain a filing date of 25 August 2021 or sooner) in order for your invention to remain innovation patent-eligible.  Practically speaking, foreign applicants may struggle to justify bringing their international phase filing forward simply to preserve their rights in Australia’s second-tier patent system.  Rather, they may prefer to file early in Australia (as a standard patent application that can later be converted to an innovation patent, or as a direct-filed innovation patent application), leaving the PCT international phase to run its natural course.

We have attempted to capture this in the graphic below:

What can I still do come 26 August 2021 and after?  

As noted above, for applications already filed in Australia (convention or national phase) or indeed existing PCT international phase applications designating Australia, this is not problem – your ability to make use of the innovation patent system is maintained.  As shown on the timeline below, you can convert an existing standard patent application (i.e., having a filing date of 25 August 2021 or earlier) into an innovation patent, or can have a divisional innovation patent filed from it. That said, one further misconception stems from the fact that this divisional innovation patent can be filed at any time on or after 26 August 2021 (so long as the would-be 8-year term of the divisional innovation patent has not expired).  Whilst this is technically correct, delaying filing does come with consequences in that your ability to claim damages (remembering that one of the principal uses of the innovation patent is as a “litigation weapon”) only dates back to the date of publication of the innovation patent, meaning this is very much a case of “the sooner the better”.

Further reading

Reading about the innovation patent ranks second only to writing about it as a cure for insomnia.  In that respect, we’ve been following things closely over the past few years and have published insights here (Abolition is a bit harsh – rather, why not let the punishment fit the crime), here (The legislation finally passes in Federal Parliament), here (Optimistic and pessimistic views of the innovation patent system), here (Just as Australia moves to abolish the innovation patent, New Zealand considers adding one) and here (Timeline for the phasing out of the innovation patent system).  It looks like someone’s going to have to find something new to write about!

Commentary

The bottom line is that whereas the innovation patent system could have been “fixed” (which may have in turn given it a chance of achieving its stated goal of stimulating R&D amongst local SMEs), the Government had long-since decided its fate.  It was always going to die and attempts to recover it, whilst deserving of a better outcome, ultimately amounted to little more than a fool’s errand.  That we’ve landed where we have is a sad but inevitable consequence of a system that sounded good in theory, but was imperfect in design – and in this respect we need look no further than innovation patent 2001100012, which was “granted” (although later revoked) for a “circular transportation facilitation device” – a wheel.  In many ways, the only surprise is that it’s taken us 20 years to get to where we are now. 

Authored by Shan Sun, PhD and Gareth Dixon, PhD

In a previous article, we noted the enactment of the Republic of Nauru Trademarks Act 2019 (the Act) and Trademarks (Forms and Fees) Regulations 2020 (Regulations).

In this article, we delve a little deeper and provide a brief outline of the registration process.

The Act allows for registration of a “mark” which includes a sign, slogan, device, brand, heading, label, ticket name, word, letter, numeral, aspect of packaging, shape, colour, sound, scent, hologram, motions, textures, or any combination of these. Collective marks are available but certification marks are not.

It is possible to register both goods and services, but multi-class applications are not available.

An application for registration must be signed by the applicant and include a declaration for use or intention to use the trade mark.

Provided the application meets formality requirements, details are published in the Gazette for opposition purposes. Interested parties then have 21 days to file opposition against the application.

If an opposition is filed, the Registrar will provide a copy of the Notice of Opposition to the applicant, who then has 21 days to file a response. Failure to do so may result in the application being abandoned. If the applicant files a response within the prescribed time, the Registrar will provide this to the opponent and require the parties to provide such other information necessary to make a decision.

If no opposition is filed, or is deemed unsuccessful, the application undergoes examination on both absolute and relative grounds. If there are any objections to acceptance, the Registrar will issue a non-compliance notice and the applicant has a short period of 30 days from the date of receipt of the notice to resolve them.

If the application passes examination without objection(s), or once any identified issues are overcome, the Registrar will issue a Notice of Decision (Acceptance) and subsequently a Certificate of Registration.

The application process is anticipated to take no longer than 90 days from the date of filing. The Registrar has the power to reject an application and deem it abandoned where the applicant fails to complete the registration process within this timeframe.

Registration is deemed to have come into effect from the date of filing and, subject the payment of a prescribed annual maintenance fee, the trade mark is registered for a period of 10 years.

It is possible to claim convention priority based on a foreign application filed within the preceding six months of the application in Nauru. It remains to be seen how this will work in practice in the context of competing rights given the prescribed three month trade mark registration process.

A unique feature of the Act is the possibility of adding goods or services to the registration, thus extending the scope of protection. The application for addition of goods or services is published in the Gazette and third parties have 14 days to oppose the request, failing which the Registrar may alter the registration.


Shelston IP can act directly before the Nauru Trade Marks Registry to obtain trade mark registrations for our clients.

If you require further information or would like assistance with the filing of a trademark application in Nauru, please let us know.

Authored by Kathy Mytton and Sean McManis

3 min read

It is quite common for country leaders to be given catchy nicknames by the press. Some stick better than others.

In the US, there are examples such as JFK, LBJ, and Tricky Dicky. In the UK, examples include Winnie, The Iron Lady, and most recently BoJo. In Australia, the current prime minister is known as ScoMo, and some of the nicknames given to previous prime ministers include Pig Iron Bob, Honest John and the Mad Monk.

In a recent decision by the New Zealand Trade Marks Office, an issue arose as to the protectability of a former prime minister’s nickname, namely ‘Aunty Helen’.

James Craig Benson applied for registration of the trade mark AUNTY HELEN, after seeing a television interview where he claimed that the former Prime Minister Helen Clark said that she had no intention to use or register ‘Aunty Helen’ as a trade mark. He says that as he liked the sound and feel of the name, he then decided that it presented a valuable business opportunity for him.

The opposition concerned registration of AUNTY HELEN in respect of: (i) clothing; (ii) clothing retail services; and (iii) publishing services

The opposition grounds were:

  • Use likely to deceive or cause confusion: s17(1)(a)
  • Application made in bad faith: s17(2)

Likely to deceive or cause confusion

Much of the argument on whether there was a likelihood of deception or confusion concerned the issue of what is protectable under the Act.

Mr Benson claimed that as Ms Clark had not used, and did not intend to use, AUNTY HELEN as a trade mark, then she should have no basis for preventing registration. However, the Assistant Commissioner of Trade Marks explained that the policy behind section 17(1)(a) is to prevent public confusion, and its scope is not limited to confusion between trade marks.

Before it became more generally used, Helen Clark had been referred to as ‘Aunty Helen’ by Pacific Island and Maori communities. This is because “Aunty” is commonly used as an affectionate reference to an adult female member of those communities. The evidence established, and Mr Benson acknowledged, that Ms Clark was widely known by the nickname ‘Aunty Helen’ in New Zealand.

While Ms Clark was no longer prime minister, and recognition of the name was not as strong as it had been, the Assistant Commissioner of Trade Marks found requisite reputation in the name AUNTY HELEN, such that there was a likelihood of an assumption of approval or endorsement. In this regard, he stated:

The average consumer has a degree of commercial realism regarding the role well-known people play in marketing and advertising. When an internationally famous actor such as George Clooney is seen sipping coffee in a television commercial, the well-known Cook Nigella Lawson is seen praising a New Zealand brand of chocolate, or an All-Black or other New Zealand personality is seen in an advertisement, a viewer is likely to understand that their presence is an endorsement and commercial in nature

The onus rests with the trade mark owner to establish that there is not a likelihood of confusion, and Mr Benson was unable to do this. Consequently, this ground of opposition was successful.

Bad Faith

The ground of opposition on the basis of bad faith was also successful. In this regard, it was noted that Mr Benson had previously applied for registration of JACINDARELLA (a nickname for the current prime minister, Jacinda Ardern) but withdrew that when he encountered an objection to registration. He claimed that he was not aware of the potential association before encountering the objection.

It was also noted that the original application for AUNTY HELEN (restricted before the opposition was heard) included services related to politics.

On the basis that:

  • Mr Benson’s previous filing and withdrawal of the JACINDARELLA application indicated he had an awareness of the potential for confusion to arise from the use of a prime minister’s nickname; and
  • The fact that the application originally sought registration in relation to services relating to politics

it was found that the making of the application fell short of the standards to be expected of a reasonable and experienced business person.

Conclusion

The case highlights the breadth of matters that can be considered in determining whether there is a likelihood of deception or confusion. It also raises interesting questions as to the extent to which media-generated nicknames might be protectable.

In this case as in others, those seeking to walk a fine line involving ‘sharp’ business practices, can easily find themselves on the wrong side of that line.

Authored by Sean McManis

2 min read

Managing Intellectual Property (MIP) IP Stars publication has listed Shelston IP once again as a Tier 1 firm for both patent and trade mark prosecution. Four of our Principals have been recognised individually as IP Stars.

MIP’s IP Stars is the leading resource and most respected guide in the IP profession. Their worldwide survey of IP practitioners is used as a key benchmark for the industry.

Congratulations to all our IP Stars for being recognised as leaders in the IP industry:

Paul Harrison

Paul is a Principal and head of the chemical biotechnology team. He has over 35 years’ experience in the protection and enforcement of IP rights in Chemical Engineering and Chemistry technologies and is valued by his clients for his strategic and pragmatic approach to intellectual property.

Sean McManis

Sean heads Shelston IP’s Trade Marks team. He has extensive experience in assisting clients with trade mark protection and selection. He has been recognised by Managing Intellectual Property as an IP Star for the last 6 years and was a finalist in the 2020 Client Choice Awards for Best IP Specialist.

Charles Tansey, PhD

Charles is a Principal and experienced patent attorney with 25 years’ experience in the drafting, prosecution, enforcement and defence of patents in Australia and overseas. His technical experience across a wide range of chemistry related technologies is sought out by domestic and multinational clients.

Peter Treloar

With over 25 years of experience, Peter is an authority in Patents in Australia and New Zealand for complex electronics, computer science, and optics, with a particular bent for complex mathematical material.

4 min read

You’ve found a patent of interest but how do you know if it’s dead or alive, and if alive, when it expires, and what exactly do those kind codes indicate?

I’ll explore all these in a three part series of articles, starting with where to find status information and what it means.

Statuses

Some patent offices explicitly report the status of an application, while others make you dig a little deeper, and some make you work hard for that information.  Before we get to who’s who and what’s what, let’s look at what the language around statuses is.

At the most basic level a patent is dead or alive, but within those labels there are a number of ways to describe where in the patent lifecycle they are.  Statuses in both categories are split into pre-grant and post-grant.  Every patent office has its own language around statuses.  Here’s a selection.

Pre-grantPost-grant
AliveAccepted
Filed
Pending
Under examination
Under opposition
Unexamined
Certified
Granted
Issued
No opposition filed
Patented
Registered
Sealed
DeadAbandoned
Converted
Lapsed
Refused
Rejected
Void
Withdrawn
Ceased
Dead
Ended
Expired
Revoked

Although data aggregators such as commercial patent databases often have status data, the recognised place to go for accurate status information is the national register for the patent of interest.  In Australia that’s AusPat, and in New Zealand it’s IPONZ.  Other sources include PAIR (United States), the European Patent Register, KIPRIS (South Korea), J-Plat-Pat (Japan), and thanks to Brexit, Ipsum (United Kingdom) now has more relevance than it used to.  Of course the list of national registers is far too long to mention every one here, but you can find a list at the WIPO Patent Register Portal.

In some national registers all you need to do is search for a patent number (or any search) and the status will be provided as part of the search results or record view, such as AusPat below.

Others in this group include IPONZ, KIPRIS and Ipsum.

National registers in the next group don’t explicitly state the status of a patent, and usually require a single click, or maybe two, from the search results page through to the record view.  For example the search results page for J-Plat-Pat is shown below, and a click on ‘Details’ will take you to the information required.

Others in this group include In-PASS (India), PRV (Sweden) and the Canadian Patents Database.

The last group of national registers make you work harder to find the status of a patent.  I’m looking at the European Patent Register, and giving death stares to the United States’ PAIR in particular, and for different reasons.

First to the European Patent Register.  The initial view is straightforward as shown here.

The status ‘No opposition filed within time limit’ refers to the period after acceptance where an application can be opposed before grant, and in this case that time has expired and the patent has been granted.  Simple isn’t it?  Not quite.  Europe is a group of countries, and a number of these get designated so that the EP patent is applicable in each of them, so your country of interest has to be on that list, as shown below.  To find this list just scroll down the register page for this application.

Are we there yet?  Sorry, no.  We still need to scroll down the page a little further.  The list of designated countries is essentially an ambit claim, hedging that the patent is going to make it big.  They usually don’t so many of the designated states find themselves on the ‘lapsed’ list, shown here in part.

Now you need to conduct a reverse search to see if the country of interest is on the list or not, made all the harder by having the list in date order, not alphabetical order.  If the country of interest is here, the patent is dead, if not, possibly still alive.  At first glance I can see Germany, France, Great Britain and Ireland are still potentially alive.  A trip to their respective registers (Depatis, INPI, Ipsum and IPOI) is necessary to confirm that.

Now to PAIR.  Many national registers will change the status of a patent when a significant event such as ceasing through non-payment of renewal fees, or expiry after the full term of the patent, but the USPTO do not. Take the example shown below where the initial view in PAIR indicates it is a ‘Patented Case’.

The image doesn’t show the application filing date or the earliest effective filing date but it is 3 May 1999 for both.  If you’ve read my previous article on calculating United States patent expiries you’ll know the expiry date is 3 May 2019.  That’s a date in the past so this patent has expired, but PAIR does not say so.  You have to do all the work here.

There’s always the possibility of a patent term adjustment of more than two years, but with an issue date just over three years after filing, that’s unlikely, so you can assume it is well and truly dead.

This example is for a patent around the end of its expected life, but for others, in addition to calculating the expected expiry date, you may need to check the patent maintenance fees to see if they are up to date.  You can access that information through PAIR.

That’s a brief rundown on statuses, where to go to find them, and what language is used to describe them.  I touched briefly on patent expiry dates for the United States.  In Part 2 I’ll look at patent expiries in other parts of the world.

Authored by Frazer McLennan and Gareth Dixon