The Intellectual Property Laws Amendment Act 2015 (the Act) was passed by the Senate on 9 February 2015. The Act implements various changes including those designed to simplify elements of Australia's intellectual property system. In particular, the Act amends the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003 and the Plant Breeders Rights Act 1994.
The key issues dealt with under the Act are:
- The implementation of the Protocol amending the World Trade Organisation Agreement on trade related aspects of intellectual property (TRIPS Protocol). This will enable Australian generic drug manufacturers to apply to Australia's Federal Court for a compulsory licence, which effectively grants permission to manufacture patented pharmaceutical drugs and export those medicines to developing countries facing health crises. The explanatory memorandum to the Act highlights that "the Australian public benefits through having access to the latest technology, products and services. Many least-developed and developing countries have difficulty manufacturing or accessing patented pharmaceuticals, and so are unable to respond effectively to public health problems. This Bill will amend the Patents Act to allow Australian pharmaceutical manufacturers to supply these countries with the patented medicines they need". It is also envisaged that the patent holder will receive adequate compensation so they are not disadvantaged.
- The extension of the jurisdiction of the Federal Circuit Court of Australia, to include plant breeder's rights matters. The objective here is to enable those who work with plant breeder's rights, such as farmers, to have access to a more timely, simplified, succinct and cost effective method by which to resolve disputes and enforce their rights;
- The facilitation of a single Trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand, as part of the broader single economic market agenda. This change seeks to make it easier and more cost effective for patent applicants to register their patents in both countries;
- Amendments to the Patents, Trade Marks and Designs Acts to repeal unnecessary document retention provisions, on the basis that these matters are adequately governed by the Archives Act 1983; and
- Making minor amendments to the Patents Act to remedy oversights in the drafting of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, which came into effect on 15 April 2013, as well as some technical corrections to drafting issues with the Patents Act.
Importantly, the Act also enables Australia to meet its TRIPS Protocol obligations with respect to the ease of access to vital (patented) medicines that can assist developing countries facing health crises. Previously, the Federal Court's power to order a patent owner to grant a particular license was limited to situations where the Court was satisfied that there had been a failure on the patentee to exploit the patent (without satisfactory reason); the "reasonable requirements of the public" had not been met; and where the applicant for the licence had tried for a reasonable period to obtain authorisation on reasonable terms. Or alternatively, if the patent owner had contravened Part IV of theCompetition and Consumer Act 2010 (relating to restrictive trade practices) or a law in connection with the application for the patent.The amendments effected by the Act aim to reduce regulatory and administrative costs and delays for Australian businesses related to intellectual property issues. They also seek to make it more cost effective, timely and easier to protect and enforce certain intellectual property rights, including obtaining patent registration and those in respect to plant breeders' rights.
Circumstances considered to fall below the "reasonable requirements of the public" were those where an existing or emerging trade or industry in Australia was unfairly prejudiced, or the demand for the patented invention was not reasonably met (due to the failure of the patent owner to supply the invention in a reasonable way). The amendments pursuant to the Act now provide a specific path to deal with the matters envisaged under the TRIPS Protocol obligations. Further details with respect to the Act can be found on IP Australia's website at www.ipaustralia.gov.au.