Intellectual Property Laws Amendment Bill 2013: Compulsory use Reform Gains Support

Friday 21 June 2013 @ 12.11 p.m. | IP & Media

The Intellectual Property Laws Amendment Bill 2013 is currently being debated in the Federal Parliament and has received the support of The House of Representatives Standing Committee on Social Policy and Legal Affairs who on handing down its report into the Bill earlier this week (on 19 June 2013) recommended that the bill be passed.

What the Bill Does

In essence the proposed legislation:

  • amends the Patents Act 1990 (Cth) to modify the operation of the Crown use provisions and implement the Protocol amending the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property to enable Australian pharmaceutical manufacturers to supply developing countries with generic versions of patented medicines;

  • makes technical amendments to the  Plant Breeder’s Rights Act 1994 (Cth) to enable the owners of plant breeder’s rights in a plant variety to have the option to take action in the Federal Circuit Court against alleged infringers;

  • amends the Designs Act 2003(Cth), Patents Act 1990(Cth), Plant Breeder’s Rights Act 1994 (Cth) and Trade Marks Act 1995 (Cth) to provide for a single trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand; and,

  • further amends the Designs Act 2003 (Cth), Patents Act 1990 (Cth) and Trade Marks Act 1995 (Cth) to remove document retention requirements.

How Changes Came About

The legislation follows on from reccommendations by the Productivity Commission which we have previously reported on, key among which are:

  • Replacing the "reasonable requirements of the public" test for granting a compulsory licence to exploit a patented invention with a new public interest test;

  • Removing the provision in the Patents Act 1990 (Cth) dealing with situations where a patent is used anti-competitively;

  • Repealing section 136 of the Patents Act 1990 (Cth) and incorporating treaty obligations directly into the Patents Act;

  • Incorporate a system of Crown use which would be a cheaper and quicker alternative compulsory licensing.

Reaction to the Changes

As The Conversation reports: "The legislation gives Australian governments greater powers to exploit patents without authorisation from the patent owner via stronger provisions for Crown use and compulsory licensing." This  "Crown use" provisions allows governments to access patents without the patent owners' permission and through compulsory licensing governments can compel patent owners to provide access to patented inventions assuming of course such compulsion inclludes adequate compensation being paid to the patent holder. The Conversation points out that as such: "The reforms will improve access to cancer testing and treatment and essential medicines for diseases such as HIV/AIDS, tuberculosis, and malaria".

Another important aspect highlighted in the report by the The Conversation is that: "The Crown use reforms will clarify the power of governments to provide access to patents for public services"... so in areas of medicine like the treatment of breast cancer the reforms will improve access to the type of technology that allows testing for BRCA1 and BRCA genes, technology which has been the subject of litigatioh here in Australia and in the USA with the result being against allowing access in Australia and more favourable in the USA (see Association for Molecular Pathology v Myriad Genetics).

There is strong argument as The Conversation points out for the Australian Parliament in future to consider the further issues raised by the Productivity Commissions Report in respect of patent law and compulsory licensing dealing with competition as against the public interest.

Sources:

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