In summary it deals with
- Crown use of patents - Provisions for the Crown use of patents have been clarified to "increase certainty and accountability".
- TRIPS Protocol - "Implementation of the TRIPS protocol should assist developing countries facing serious health problems".
- Plant breeder's rights - The Federal Circuit Court will have jurisdiction regarding PBR litigation.
- Trans-Tasman Single Economic Market - Provisions allowing for a single patent attorney regime and single patent application and examination process.
- Technical amendments - Minor corrections to the Patents Act 1990 (Cth), to ensure that the 'Raising the Bar Act' operates as intended.
an important, but rarely used, safeguard that allows governments to access patented inventions without the consent of the owner. It is necessary for a government to have the power to be able to make use of patented inventions to serve the interests of the community. Similarly, a patent holder should not be able to indefinitely frustrate the needs of the community, for example, by denying access to an important health technology.Amendment of the Patents Act will clarify the scope of Crown use and its operation, adopting recommendations of the Productivity Commission inquiry report into compulsory licensing of patents, particularly in the context of health care. The inquiry reflected concerns regarding gene patents, eg that "such patents do not lead to Australians being denied reasonable access to essential healthcare technologies".
Schedule 1 makes it clear that Crown use can be exercised when an Australian state or territory government has the primary responsibility for providing or funding the provision of a service.
This allows governments to authorise private service providers to use an invention in areas where governments have primary responsibility, such as health. It strengthens governments' capacity to use this safeguard to address unreasonable patent holder conduct. If the government deems it necessary and appropriate to intervene to address unreasonable patent holder conduct that could result in patients being denied reasonable access to health care, it would be willing to invoke these refined Crown use provisions.The bill also introduces a number of measures to improve transparency and accountability in the exercise of Crown use. It will require government agencies to attempt to negotiate with the patent owner before invoking Crown use, will address current ambiguity around which bodies are considered to be the Crown for the purposes of the provisions, will require the government to give patent owners the reasons for any decision to invoke Crown use, and will introduce a benchmark to reassure patent owners that they will receive a fair price for the use of a patent.
Schedules 2 and 3 deal with the TRIPS Protocol interim waiver and TRIPS Protocol to "enable Australian laboratories to manufacture generic versions of patented medicines under specific conditions and export these medicines to address health crises in developing countries". Manufacturers of generic pharmaceuticals will be able to apply to the Federal Court for a compulsory licence to make and export a patented pharmaceutical product. The Federal Court will have the power to grant compulsory licences, set conditions of use and amend the quantity of medicines required in the event that a health problem intensifies. Patent holders will receive adequate compensation to ensure that they are not disadvantaged by the arrangements.
Schedule 4 deals with the Plant Breeder's Rights Act 1994 (Cth), extend the jurisdiction of the Federal Circuit Court, formerly known as the Federal Magistrates Court, to include plant breeders' rights. At present, civil proceedings under the Plant Breeder's Rights Act may only be commenced in the Federal Court and are appealable to the High Court.
Schedule 5 allows for a single trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand as part of the trans-Tasman Single Economic Market agenda highlighted here.
Under the single examination model, patent applications for the same invention will be examined by a single examiner in either country. The regime will take account of the separate national laws and will lead to two separate patents for Australia and New Zealand. A single patent application process will remove duplication, drive efficiencies and reduce costs, making it easier for businesses to protect their intellectual property in both countries. ... The bill will also facilitate a single trans-Tasman regulatory framework for patent attorneys across Australia and New Zealand. The Australian government has worked closely with New Zealand to establish a new framework that will include a single trans-Tasman register of patent attorneys, common qualifications for registration, a single Trans-Tasman IP Attorneys Board and a single Trans-Tasman IP Attorneys Disciplinary Tribunal.Schedule 6 (Part 1) makes minor administrative changes to the Patents, Trade Marks and the Designs Acts to repeal unnecessary document retention provisions on the basis that retention and disposal of these documents is already governed by the Archives Act 1983 (Cth). The amendments "will reduce government expense in maintaining warehouse facilities for documents that are no longer required".
Schedule 6 (Part 2) makes technical amendments to the Patents Act to address minor oversights in the drafting of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth).
