IP Laws Bill progressed after Productivity Commission Report

The federal government has moved to amend intellectual property Crown use provisions following recommendations in the Productivity Commission Inquiry Report on the compulsory licensing of patents.

Parliamentary Secretary for Climate Change, Industry and Innovation Yvette D’Ath last week introduced the Intellectual Property Laws Amendment Bill 2013 into parliament to “clarify the operation of Crown use provisions in the Patents Act 1990”.

“Crown use is an important, although rarely used, safeguard that allows governments to access patented inventions to deliver critical public services,” said D’Ath.

The announcement came after last week’s release of the Productivity Commission’s Report on Compulsory Licensing of Patents, which found there was uncertainty around the scope of current Crown use provisions, particularly in the context of healthcare. The Productivity Report can be found at http://www.pc.gov.au/projects/inquiry/patents/report.

The Bill seeks to clarify the circumstances under which Crown use can be invoked in relation to any service that governments have the primary responsibility for funding or providing. While commercial negotiation with patent holders will continue as normal, Crown use will be a safeguard to address exceptional circumstances.

The Bill also includes a requirement to negotiate and provides a basis to determine remuneration for patent holders. These amendments will give governments and business greater certainty about the operation of Crown use.

“Some categories of patents, such as gene patents, raise complex legal and ethical questions. The validity of these patents is currently being considered in court cases in Australia and the United States,” said D’Ath.

“In the meantime these changes make it clear that, if necessary, the Australian Government has the power to address unreasonable conduct by patent holders and protect patients’ access to healthcare services.”

In announcing the introduction of the Bill, D’Ath also said the government would “undertake a number of measures to further clarify the patent system and strengthen mechanisms for oversight”, such as:

• The appointment of a Patent Audit Committee to advise on patent policy settings and undertake audits of patent approvals for certain technology groups;
• Commencing consultations on a new objects clause for the Patents Act; and
• Consulting on excluding certain inventions which would be offensive to the public.