Statutory requirements

The concept of a patentable invention appeared originally in s 6 of the Statute of Monopolies 1623 and was expressed in terms of any ‘manner of new manufacture’. The purpose of this section was ‘to allow the use of the prerogative to encourage national development in a field which already, in 1623, was seen to be excitingly unpredictable’.

There has never been a statutory definition of the phrase ‘manner of manufacture’. Over the centuries, judicial interpretation of s 6 gradually fleshed out the requirements of a ‘patentable invention’ which is now defined in sch 1 of the Patents Act 1990 (Cth) as meaning ‘an invention of the kind mentioned in section 18’. As to the meaning of ‘invention’, sch 1 provides that the word ‘invention’ (without any definite or indefinite article before it) means ‘any manner of new manufacture the subject of letters patent and grant of privilege within s 6 of the Statute of Monopolies, and includes an alleged invention’. The word ‘alleged’ relates to the word ‘new’. The term ‘new’ in s 6 was a broad and undefined concept that has subsequently been construed by the courts to encompass the separate notions of novelty and inventiveness. The use of the word ‘new’ in the context of the phrase ‘manner of new manufacture’ in the 1990 Act is not to be equated with what we now refer to as ‘novelty’.