The Intellectual Property Laws Amendment Bill 2014, in the legislative pipeline for a while, was finally passed by the Australian Senate on the evening of 9 February 2015.
The Bill makes four changes of note:
- Schedule 1 implements a TRIPS Protocol waiver which positively affects Australian generic pharmaceutical manufacturers,
- Schedule 3 implements access to the Federal Circuit Court for Plant Breeders Rights holders,
- Schedule 4 implements a single trans Tasman Patent Attorney regime and patent filing and examination process, and
- Schedule 5 removes the requirement for document retention requirements in patent, trade mark and design legislation.
A media release from the Parliamentary Secretary to the Minister for Industry and Science, The Hon Karen Andrews MP, states ‘The Act introduces changes that will simplify aspects of Australia’s IP system, make it cheaper and easier to protect and enforce certain IP rights, and make it simpler for developing countries to get help in dealing with major public health crises.’
The first two schedules relate to the same matter; implementing the TRIPS Agreement and associated Doha Declaration. The aim is to enable developing countries to have easier access to patented pharmaceuticals, particularly during a health crisis.
The Act will allow compulsory licences to be granted to Australian manufacturers to make generic versions of patented drugs or to use a patented process to manufacture the drugs. The drugs can then be exported to the country in need. The patent holder will also be entitled to financial compensation under the provisions.
Plant Breeders Rights
Litigation of Plant Breeder’s Rights will now be possible at the Federal Circuit Court, in line with other IP rights in Australia. This will be beneficial for the main reason that it will allow owners of the Plant Breeder’s Rights cheaper access to courts for enforcing their rights. Previously holders of Plant Breeders Rights had redress only through the Federal Court.
The Australia and New Zealand Patent Scene
Schedule 4 has two aspects, firstly putting the groundwork in place for a streamlined patent application process in both Australia and New Zealand. This allows for a single application to be filed and examined, taking both countries’ laws into consideration. Following successful examination granted patents would result in both Australia and New Zealand.
The other aspect is to create a single trans-Tasman patent attorney regime which will oversee the registration of patent attorneys in both Australia and New Zealand. This will provide consistency between the patent attorney services offered in each country and allow for a single set of qualifications for registration.
Neither of these aspects can be affected until the New Zealand parliament passes parallel legislation. The Bill has a sunset clause relating to these aspects which will mean that if the New Zealanders cannot enact similar legislation these provisions will cease to be operative after a period of 24 months from the Bill receiving Royal Assent.
And the rest…
The ‘other amendments’ section simply provides for updating of the Patents Act to address minor technical errors from the Raising The Bar reforms. This also removes document retention provisions imposed on IP Australia by the Patents, Trade Marks and the Designs Acts.