Productivity Commission announces inquiry into the compulsory licensing of patents

The Australian Government has announced that it has instructed the Productivity Commission to undertake an inquiry into the compulsory licensing provisions of the Patents Act 1990. Both the Australian Law Reform Commission and the Senate Committee which reported last year on the impact of so-called “gene patents” recommended that the compulsory licensing provisions of the Patents Act be revisited. To the best of our knowledge, this is the first time the Productivity Commission has been asked to enter the patent fray.

The inquiry will assess, advise and recommend on the impacts and mechanisms of compulsory licensing invoked by the public interest and anti-competitive safeguards set out in Chapter 12 of the Patents Act 1990.

The Terms of Reference require the Commission to:

  • assess whether the current Australian provisions can be invoked efficiently and effectively
  • recommend any measures to efficiently and effectively exercise these safeguard provisions, in a manner consistent with Australia’s international obligations
  • recommend any alternative mechanisms, to ensure that the balance between incentives to innovate and access to technology best reflects the objectives of reasonable access to health care solutions, maximising economic growth and growing the Australian manufacturing industry.

The Government’s press release states that “Compulsory licensing is an increasingly sensitive issue internationally, particularly in the context of access to affordable health care. Accurate medical advice relies in part on the identification and use of gene sequences related to human health and disease. Of concern to government is a perception that patents over genetic technologies, or a perceived lack of licences to use these patents in Australia, unreasonably restricts or delays patient access to medical advice based on the latest diagnostic tests. Other areas of sensitivity include climate change mitigation, food security and alternative energy technologies, and technical standards essential patents (for example, in telecommunication technologies)”.

It is inevitable that the concerns expressed over patents directed to gene sequences and their use by various Members of Parliament, as well as vocal academic and public interest groups will be reiterated in this forum. The Commissions invitation to consider the issues surrounding standards essential licensing has quite possibly been thrown up by the very public battle in the Australian courts between Apple and Samsung over computer tablets, and/or by inquiries in various forums in both Europe and the US over similar (anti) competition issues. Expressions of interest in the Inquiry are sought through the link: patents@pc.gov.au.

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