application procedures had been complied with. Issues of patentability and novelty would be decided by the courts after grant. This system has the potential for speed, simplicity and economy. But such a system also has the potential for abuse because an examination has not been conducted into patentability.
12.6.
As outlined in paras. 4.6 to 4.13, there are significant disadvantages with a non-examination system. In summary the disadvantages are :
12.7.
(a)
(b)
(c)
that unexamined patents lead to uncertainty as there has been no assessment of validity before grant, and because the claims may be unclear;
litigation is expensive and time consuming and is not a viable alternative to proper search and examination. The registration and litigation of unexamined patents could strain the resources on the judiciary; and
there is potential for abuse as patent holders may unjustifiably threaten action on the basis of invalid patents;
It must be also remembered that a petty patent is a monopoly right. Abuse is most likely to occur when a patentee applies for an ex-parte or interlocutory injunction to prevent alleged infringement. Under our present patent system the courts do not embark on a detailed analysis of validity at the interlocutory stage but place some reliance on the fact of search and examination having taken place. If a defendant produces evidence that the patent may be invalid, it is likely that the court would adjourn any argument on validity until trial. There could also be abuse when the applicant is allowed to amend his patent voluntarily. As there is no examination of the amendment, an amendment could be used as a guise to broaden the scope of the patent to cover activities conducted by competitors since the date of filing. This would not be the case in an original grant examination system where the amendment would be re-examined by the patent office.
Non-examination system with a search before grant
12.8.
This type of modified non-examination system requires only formal examination with no examination for patentability but would require the applicant to obtain and file with the patent office a report on a search of the prior art before a patent can be granted. Such a system can still lead to grant quite quickly, but obviously the time taken depends on the speed in which the search report can be obtained by the applicants.
12.9.
The requirement to file a search report reduces to some extent the risks of abuse inherent in a basic non-registration system, as competitors and the public can check the search report for cited prior art. This should give them some indication of the validity of the patent, or at least will shorten the process of searching the prior art for material which would invalidate the patent. If there were no requirement that a search report be filed before grant, the cost of obtaining a search might fall on third parties.
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