Answer ... The intersection between patent law and competition law in Australia is not well defined and there is little case law dealing with the respects in which patent rights might be limited by competition law. In general, limits are not imposed on patent protection by competition law. Historically, an exemption has also existed in the Competition and Consumer Act 2010 in relation to intellectual property, protecting IP rights holders from liability for anti-competitive conduct arising out of restrictions imposed on licensing and other agreements. However, legislation is proposed to remove this exemption, which will expose IP licences to general competition law requirements.
In addition, certain anti-competitive behaviours relating to the use of patent rights may in certain circumstances have consequences.
One aspect of this principle is reflected in Section 144 of the Patents Act 1990 (Cth), discussed in question 10.2, which deems certain licence terms void in certain circumstances.
Compulsory licensing provisions in the Patents Act also require the patentee to grant a licence to a third party in certain circumstances. One of the grounds for seeking such a licence is if the patentee has contravened Australian competition law, which deals broadly with anti-competitive practices such as price fixing; restriction of outputs in the production and supply chain; allocation of customers, suppliers or territories; and bid rigging (Section 45aa of the Competition and Consumer Act 2010). A compulsory licence can only be sought three years after the patent has been granted (Regulation 12.1(1) of the Patent Regulations 1991), and cannot be sought for an innovation patent unless it has been certified (Section 133(1A) of the Patents Act 1990). These provisions are currently under review as a result of recent reports of the Productivity Commission.