The recent release of the Productivity Commission’s report into Intellectual Property Arrangements in Australia has evoked a range of conflicting views in relation to the type and extent of policy best suited to incentivise innovation in Australia.
Of great concern is that the Government may adopt a number of the more extreme Productivity Commission recommendations, including:
- Abolition of Australia’s second tier innovation patent system; and
- Restricting or making redundant extensions of patent term for pharmaceutical patents.
The Institute of Patent and Trademark Attorneys of Australia (IPTA) has been a staunch advocate of current Australian innovation policy, through their submissions to the Productivity Commission as well as the Department of Industry, Innovation and Science. Part of IPTA’s role involves lobbying the Minister and Assistant Minster for Industry, Innovation and Science to ensure that the ramifications of implementing the Productivity Commission’s recommendations are fully understood by the Government.
Innovation policy advocacy from intellectual property professionals, such as patent attorneys, however, must overcome a seemingly insurmountable hurdle; namely the perception that we are simply motivated by self interest and will, by default, campaign for a system that stifles competition and permits the grant of patents covering subject matter which is trivial or which clearly should not be patentable – all to the detriment of the general public. Even acting strategically to maximize the rights of our clients, i.e. innovators, is held in derision by the Productivity Commission. This view of patent attorneys has resulted in our opinions, over the years, being excluded from consideration of innovation policy reform.
As explained by Prof. Andrew Christie during his introduction of the recent Francis Gurry lecture, “the (Productivity Commission’s) review was taken wholly through the lens of economists”. Not an intellectual property professional in sight! Contrast this situation with that of the early 1980’s, when the Industrial Property Advisory Committee, made up of a mix of intellectual property professionals and a sole economist, undertook a review of patents, innovation and competition in Australia.
The reality is that patent attorneys are engineers and scientists who are passionate about innovation. Innovation is a patent attorney’s “bread and butter” and for us to support a position that stifles innovation makes no sense whatsoever. This begs the question, why exclude the views of intellectual property professionals from something as important as a review of Australia’s innovation policy? The exclusive “economist-only innovation club” surely must come under scrutiny, not simply for relying on questionable proxy evidence but also for lacking meaningful professional diversity. It is curious that the perspective of economists, who generally have no proximity to innovation and the commercialisation of technology, does not appear to be questioned.
Economists seem to want to seduce both the government and the public into believing that “socially-responsible” innovation policy reform simply involves stripping rights from innovators, and that Australia has failed and can never compete as an innovative country. The Productivity Commission’s showcase of the “economist-only” position appears to represent not only a denunciation of the Turnbull Government’s innovation agenda, but also a retrograde move away from the robust innovation policies of Australia’s major trading partners including China, which in recent years has bolstered its innovation policy. All of this, from the perspective of intellectual property professionals, who are intimate with the complexities of commercialisation of technology, must be considered sensibly as fake news!