We have recently witnessed IP Australia Examiners issuing lack
of support and enablement objections that require at least 10 XRPD
peaks in a claim to appropriately support and define a
novel/inventive polymorph.
The Support Objections
The support objections raised by Examiners are based on
sub-sections 40(3) and 40(2)(a) of the Patents Act 1990
(Cth) and typically take the following form:
Sub-section
40(3) – that the claims are drafted so broadly
that their scope extends beyond the disclosure of the specification
to encompass possibilities which cannot be readily predetermined or
assessed by what is disclosed, and that the specification does not
provide sufficient directions as how to put the claimed invention
into practice; and
