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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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