The Australian Minister for Trade and Investment, Andrew Robb, signed the Trans Pacific Partnership Agreement (TPP) on 4 February 2016. The other member countries of the TPP include New Zealand, The United States, Canada, Mexico, Japan, Chile, Peru, Vietnam, Malaysia and Brunei Darussalam. Each member country will now follow its own domestic ratification process that will enable the TPP to enter into force. In
Australia, a Joint Standing Committee on Treaties (JSCOT) inquiry will be conducted and then the Australian parliament will consider legislation implementing the TPP, including any necessary amendments to domestic law.
A media release from Mr. Robb dated 6 October 2015 stated: “In regard to intellectual property, TPP will not require any changes to Australia’s patent system and copyright regime.” However, a review of Chapter 18 of the TPP, raises some questions about whether Australia’s current IP laws are entirely consistent with the TPP. Below we highlight and provide comments on several IP sections of the TPP that could be in conflict with existing Australian law.
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As will be evident from the above, despite Australia’s current official position, there remains some doubt as to whether Australian intellectual property law is completely consistent with the provisions of the TPP. It therefore will be interesting to observe the conclusions that are reached by the Australian JSCOT, and any subsequent actions taken by Parliament.
It appears that current Australian legislation may need to be amended in order to fully conform with the TPP requirements for patent term adjustment and trade secret protection. Additionally, particularly given the current ambiguity in AU law and the outcome of the abovementioned ALRC report, if it is determined that excluding GUIs from design protection is inconsistent with the TPP provisions, parliament may consider explicitly providing such protection under statute. Finally, it will be of substantial interest to those in the biotechnology industry to observe any consideration by the JSCOT and parliament as to the protection afforded to biologics under current Australian law, including the effect of the recent exclusion of nucleic acids from patentability.