The degree of inventivity required of a patent claim to resist an obviousness attack in Australia has been notoriously low for the last twenty years. There are signs that this may be changing. In Astra Pharmaceuticals Australia v. Alphapharm, the Federal Court was faced with a patent claiming a controlled release oral dosage formulation of a known drug that had been issued under the 1952 Act, under which only documents that formed part of common general knowledge could be used as the basis for an obviousness attack. The problem solved by the invention was that prior attempts at such formulations had either inadequate storage stability or inadequate resistance to stomach acid. However, the judge was not persuaded that the solution found by the patentees was inventive since in his view routine experimentation by a drug formulator would have produced the same solution after he had read the prior art to determine the general ideas being used by those skilled in the art. Therefore there was not room for even a scintilla of invention in what was claimed.

Since the 1990 amendments to the Australian Patent Law add to the materials that can be considered when assessing obviousness, it seems likely that, for cases that may arise on patents issued under the 1990 Act, the degree of inventivity will also be subject to a higher standard.