IPAustralia is seeking comment on the implementation of the TRIPS Protocol. In Australia, the Federal Court can order a patent owner to grant a compulsory licence, which would allow others to exploit the invention covered by the patent. Those products made under the compulsory licence cannot, however, be exported, which would be a problem if the products are pharmaceutical and there is another country suffering a health emergency.

If Australia implemented the TRIPS Protocol, compulsory licences could then be issued to produce patented pharmaceutical products for export to least-developed and developing countries.

The consultation paper sets out the following issues involved in implementation, and IPAustralia's proposed approaches:

  • the power to issue and amend licences
  • pharmaceutical products covered
  • eligible importing countries
  • criteria for ordering the grant of a licence
  • conditions on licences granted
  • challenges to a licence
  • Therapeutic Goods Agency issues
  • Australia-US Free Trade Agreement issues.

IP Australia will consider submissions and then make recommendations to the Federal Government. The closing date for submissions is 4 June 2010.