Productivity Commission releases draft report on compulsory licensing of patents

In June 2012, the Assistant Treasurer, David Bradbury, and the Parliamentary Secretary for Industry and Innovation, Mark Dreyfus, announced the review. The compulsory licensing provisions in the Patents Act 1990 safeguard against anti competitive behaviour that might result from the exclusive rights obtained through a patent.

"We want to ensure there are no unnecessary delays or impediments to accessing technology. The compulsory licensing provisions are a key protection mechanism to ensure access and an important step in implementing the Government's Response to the Gene Patents Report," said Mr Dreyfus.

Previous Senate Committee and Australian Law Reform Commission reports on gene patents recommended a review of the operation of compulsory licensing provisions in the Patents Act 1990. The review will examine whether, and how, to ensure access to patented technology while maintaining the patent incentive to create and protect new technology.

AusBiotech provided a submission (in October 2012) in response to the Productivity Commission’s discussion paper on its review.

AusBiotech’s comments were based on feedback from its membership and made in support of the joint submission made by the Institute of Patent and Trade Mark Attorneys (IPTA) and the Australian Federation of Intellectual Property Attorneys (FICPI Australia).

AusBiotech supported the ongoing technology neutral treatment of intellectual property in Australia and appreciates the Commission’s attention to striking a balance between immediate access to technologies and the innovation system that enables them to be accessible to the community in the short, medium and long term.

The current system of safeguards appears to be working well and the “Raising the Bar” legislation is expected to provide certainty that was previously lacking. AusBiotech also noted that compulsory acquisition still requires that a company be compensated for its development of intellectual property and is not the answer to a debate in which the proponents talk about access but in reality potentially seek to free-ride another’s research and development investment.

The submission made comments on:

• The importance of technology neutral IP laws;
• Striking the balance incentives for industry and researchers to invest in research, development and innovation and on the other hand affordable and equitable access to technologies, including healthcare;
• The importance of certainty for long term planning;
• Existing provisions work and the ‘Raising the Bar’ Bill has provided the certainty for researchers, which was sought;
• Compulsory licensing in healthcare.

The draft report can be found here, and comment is open until 8 February 2013.