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ARTICLE · 21 JANUARY 2022

How best method became a major pitfall for foreign (and domestic) patent owners in Australia

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Best method has gained significant traction as a ground of revocation from recent Australian patent law decisions.

AustraliaIntellectual Property
David Fixler
David Fixler
Nadege Malcolm
Nadege Malcolm
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Failure to disclose the best method known to the patentee of performing the invention1 has proven to be a powerful ground of attack in Australia - if successful, it is capable of rendering all claims of the patent invalid. While other key jurisdictions have abandoned the best method requirement (it was abolished in the US in 2011, the UK in 1977, and is not a consideration under European laws), it is still a requirement under Australian patent law - despite calls for its abolition.

Given this difference between Australian law and other jurisdictions, it is important for foreign patentees to be aware of the requirement and its implications. Best method has gained significant traction as a ground of revocation as a result of recent decisions, with the effect that it is:

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