A patent specification is a public instrument that contains the patentee’s unilateral statement to the public of what are claimed as the essential features (‘integers’) of the invention. The grant of the monopoly rights in a patent are balanced by the disclosure of the invention to the public.

A typical passing off situation is one in which the defendant represents that its product originates from or is in some way associated with the plaintiff or the plaintiff’s business when that is not the case. It may do this by adopting some business indicia of the plaintiff, such as an identical or similar business name or sign associated with the plaintiff’s product; but, as we will see, there are many different scenarios that fit that general description of passing off and the tort has also developed well beyond that basic proposition. We will also see that the understanding of the tort is complicated by its historical evolution. Its complicated history relates to the fact that the tort was recognised by both common law courts and courts of equity but they exhibited considerable differences in both their approach to the theoretical underpinnings of the tort and their approach to remedies for passing off. These historical differences continue to inform and complicate the development and application of the tort. An understanding of that history is essential to understanding the present-day formulation of passing off. It is also essential to understanding the various functions of registered trade marks, a statutory system of intellectual property that evolved from the tort of passing off.

There are a number of different criteria that a creation must meet in order for it to be protected by copyright law. These are the requirements of subject matter, material form, connection to Australia, and originality. While copyright arises automatically on creation, a work will only be protected if it satisfies these different criteria (or at least those criteria that apply). The first threshold that must be met is that the creation must fall within one of the categories of subject matter recognised under the Copyright Act 1968 (Cth). Copyright law divides subject matter into two general categories: ‘works’ (literary, dramatic, musical and artistic works) and ‘subject matter other than works’ (sound recordings, cinematograph films, sound and television broadcasts, and published editions of works).

The principal theme that emerges in intellectual property regimes, with the exception of trade marks, is to vest ownership in the creator, but to vary this where creation is in the course of employment or pursuant to some other express contractual arrangement. The application process for obtaining the grant of a standard or innovation patent was described in chapter 9. In this chapter we discuss a variety of matters that relate to the entitlement to apply and be granted a patent, ownership and the allocation of rights, including the grant of interests in the Crown and compulsory licences, and the role of the Register.

A patent is granted by the Crown and confers private property rights in the form of a monopoly for the invention of products, methods and processes in all fields of technology. The invention could relate to all manner of things, including pharmaceutical products and processes, engineering products and processes, medical and therapeutic devices, micro-organisms, computer technologies and nano technologies. These things all have in common some human intervention with nature to bring about some physical change or physically observable effect. A patent grants exclusive rights to the patentee in relation to the invention in return for public disclosure of the invention.

Copyright law regulates the creation, dissemination and use of a range of different types of ‘works’ ranging from books, plays, musical works, computer programs and films through to sound recordings and television broadcasts. In developing the legal framework to regulate copyright, the law has attempted to balance the interests and concerns of copyright owners with those of authors, users and the public more generally. For example, in setting the duration of copyright protection, the law has balanced the interests of copyright owners, who have always argued for longer protection, with those of the public more generally, who have an interest in the duration of protection being more limited.

The concept of a patentable invention appeared originally in s 6 of the Statute of Monopolies 1623 (21 Jac 1 c 3) 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’.