Amidst the furore over political spills and thrills, the Intellectual Property Laws Amendment Bill 2013 was introduced to the Australian Parliament on 30 May 2013 (view the Bill here).
The Bill arose following recommendations in the Productivity Commission Inquiry Report on the compulsory licensing of patents (view the report here).
There are two key amendments, amongst others, in the Bill:
- 'Crown use' provisions
- Enforcement of the Trips Protocol
'Crown use' provisions
The Bill aims to clarify the scope for the use of 'Crown Use' provisions in the Patents Act 1900 (Cth). As stated by the Parliamentary Secretary for Climate Change, Industry and Innovation, Yvette D'Ath, "Crown use is an important, although rarely used, safeguard that allows governments to access patented inventions to deliver critical public services."
D'Ath further stresses that "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 essence, commercial negotiation with patent holders will continue as normal and 'Crown use' will be invoked to address exceptional circumstances. Namely, the Bill amends the Patents Act to state that 'Crown use' can be invoked in respect of services that the government has the primary responsibility for providing or funding. It also aims to provide patent holders more transparency and accountability in the use of such provisions.
The use of the 'Crown use' provisions is particularly relevant to the health industry and could have controversial implications for the Government's ability to provide access to new and emerging areas of medicine, particularly gene related technologies.
The Trips Protocol
An additional key element of the Bill is the ability for the Federal Court to grant compulsory licences to Australian pharmaceutical manufacturers to manufacture and export patented pharmaceuticals to developing countries at affordable prices which are lower than prices offered in developed countries. This amendment to the Bill is intended to be an implementation of Australia's responsibilities under the Trips Protocol (view more information here).
This allows for countries ravaged by poverty and disease to buy medicine from Australian companies at competitive prices. Concern does arise, however, over the level of compensation that companies receive so they are internationally competitive.
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