Intellectual Property Exposure Draft Released

 IP Australia has released an ‘exposure draft’ of a prospective Intellectual Property Amendment Bill 2014, and is currently undertaking public consultation on the proposed amendments and associated draft explanatory memorandum.

The draft bill is a reviewed version of the Intellectual Property Laws Amendment Bill 2013 (2013 Bill), which after passing through the House of Representatives, just failed to pass the Senate when the Federal Election was called on 4 August 2013. 

Proposed Amendments

The draft legislation includes proposed amendments to the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003, and the Plant Breeder's Rights Act 1994 to:

• introduce the Protocol modifying the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Protocol), allowing Australian medicine producers to manufacture and export patented pharmaceuticals to countries experiencing health crises, under a compulsory licence from the Federal Court;
• extend the jurisdiction of the Federal Circuit Court to include plant breeder's rights issues;
• allow for a single trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand, as part of the broader Single Economic Market (SEM) scheme;
• make minor administrative changes to the Patents, Trade Marks and Designs Acts to repeal unnecessary document retention provisions that are sufficiently directed by the Archives Act 1983;
• make minor technical amendments to the Patents Act to correct oversights in the drafting of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 which was passed by Parliament in March 2012.

Changes from the Failed 2013 Bill

In contrast to the previous Raising the Bar amendments, which passed through both houses of parliament in 2012 with bipartisan support, the 2013 Bill passed only by a narrow majority in the House of Representatives. Then opposition (now government) conservative Liberal National Party (LNP) coalition strongly objected to two aspects of the 2013 Bill, namely:

• the amendments to the Crown use provisions of the Act to give effect to recommendations made in the Productivity Commission Inquiry Report into Compulsory Licensing of Patents; and
• the introduction of new compulsory licensing provisions, implementing Australia’s obligations under the TRIPS Protocol to enable pharmaceutical manufacturers to apply to the Federal Court for a compulsory licence to manufacture generic versions of patented medicines to export to developing countries, modelled on draft legislation which was released for consultation in August 2012.

Predictably, the new exposure draft differs from the 2013 Bill in a number of ways including:

• Crown Use amendments are deleted;
• Provisions relating to ancillary compulsory licences and cross-licences are deleted;
• The express inclusion of non-WTO countries as beneficiaries (‘eligible importing countries’) under the TRIPS provisions is deleted. ‘A foreign country of a kind prescribed by regulation’ is referred to instead; and
• some additional headings, and ‘simplified outline’ boxes are inserted– possibly to support parliamentarians in appropriately understanding the scope and purpose of the amendments.

 Written submissions commenting on the exposure draft are due by 7 February 2014, and may be sent to consultation@ipaustralia.gov.au.

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Consultation Paper

IP Australia

Patentology