The Productivity Commission’s report on Compulsory Licensing of Patents has been published.
One key recommendation is to replace the compulsory licence provisions in the s 133 of the Patents Act with a compulsory licence regime in the Competition and Consumer Act:
The Australian Government should seek to remove s. 133(2)(b) from the Patents Act 1990 (Cwlth), so that a compulsory licence order based on restrictive trade practices of the patent holder is only available under the Competition and Consumer Act 2010 (Cwlth). The remedy provisions in the Competition and Consumer Act should be amended to explicitly recognise compulsory licence orders to exploit a patented invention as a remedy under the Act.
The Productivity Commission also recommends that the “reasonable requirements of the public” test in s 135 of the Patents Act be replaced with a “public interest” test:
The Australian Government should seek to amend the Patents Act 1990 (Cwlth) to replace the ‘reasonable requirements of the public’ test for a compulsory licence with a new public interest test. The new test should specify that a compulsory licence to exploit the patented invention would be available if the following conditions are met:
- Australian demand for a product or service is not being met on reasonable terms, and access to the patented invention is essential for meeting this demand.
- The applicant has tried for a reasonable period, but without success, to obtain access from the patentee on reasonable terms and conditions.
- There is a substantial public interest in providing access to the applicant, having regard to:
- – benefits to the community from meeting the relevant unmet demand
- – commercial costs and benefits to the patent holder and licensee from
granting access to the patented invention
- – other impacts on community wellbeing, including those resulting from greater competition and from the overall effect on innovation.
Section 136 should be repealed and future Treaty obligations should be incorporated into the Patents Act directly.
The Productivity Commission would also like to see s 51(3) of the CC Act repealed:
but any changes to s.51(3) will need to be based on a consideration of the implications for all types of intellectual property, including those beyond this inquiry’s terms of reference.
Further recommendations relate to Crown Use,which appear to have been largely adopted already in the Intellectual Property Laws Amendment Bill 2013.
Download Full Report, or interesting chapters, here.