For more than a decade, and for at least another decade
to come, Australia's patent law has openly applied a
double-standard with respect to written description requirements,
namely the former sufficiency and fair basis tests, vs the current
sufficiency and support tests.
The "old law", under the original Patents Act 1990
(Cth) (Patents Act) applies to patents for which
examination was requested prior to 15 April 2013 when the "new
law" commenced under the Intellectual Property Laws Amendment
(Raising the Bar) Act 2012 (Cth) (RTB Act).
The old (pre-RTB) law subjected patents to sufficiency and fair
basis tests that were not onerous for patentees –
particularly those familiar with prosecution in jurisdictions such
as the USA, UK, and Europe. Among the most significant changes in
the new (post-RTB) law under the RTB Act were heightened
requirements for sufficiency and the introduction of a more robust
"support" requirement to replace the former fair basis
test.
