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With this in mind, Owen Gee, in his article entitled The Description-Claims Relationship – “A Fair Balance?”, investigates and compares the many legal doctrines developed in Australia, the US and Europe jurisdictions to determine the adequacy of the description-claims relationship. The author delves into doctrines such as “fair basis” from current Australian and previous UK law, “written description” and “enablement” from US law, and “support” from European law.
In doing so, the author observes that judicial determinations have been inconsistent, pointing to redundancy in those doctrines and the misuse of narrow legalistic tests. Thus, the validity of those doctrines needs to be re-evaluated to mitigate the risks of imposing additional costs and uncertainty on inventors, and, ultimately, degrading patent rights.
The article was first published in March 2006 in Issue 64 of the Intellectual Property Forum, the journal of the Intellectual Property Society of Australia and New Zealand Inc. (IPSANZ), and was short-listed for the 2005 IPSANZ Essay Prize. To view the full article click here. Details on how to obtain copies of the Intellectual Property Forum can be found on the IPSANZ website at http://www.ipsanz.com.au/intellectualprop.htm.
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