Patent quirk troubling sponsors

A peculiar quirk of the Australian patent system is becoming increasingly prevalent in legal action challenging the validity of patents, potentially making life more difficult and expensive for patent holders.

The quirk is the requirement that a patentee disclose the "best method" known to it of performing the invention. Australia inherited the requirement from the United Kingdom, however the corresponding UK law was abolished in 1977 to match European patent law. Likewise, the United States did away with its version in 2011, leaving Australia as one of the few major patent jurisdictions with the law.

"Rather than remain in the background or even fade away, best method challenges have assumed an increasingly prominent role in Australian patent disputes and can significantly affect the conduct and strategy of Federal Court litigation," IP lawyer Duncan Longstaff wrote in Spruson and Ferguson's 2023 Pharmaceutical Patent Review.