INTELLECTUAL PROPERTY LAWS AMENDMENT BILL 2006
Mr CADMAN (Mitchell) (10.20 a.m.)—It is very interesting to hear the Australian Labor Party wax lyrical about innovation and patents and trademarks et cetera. The closest I can remember them ever getting to anything in this area was producing a spaghetti-like photograph that said: ‘That is where our future is going’. As for dealing with patents or trademarks, I cannot remember one initiative, one piece of legislation—anything—that the Australian Labor Party produced during their term in office to deal with innovation and these issues.
The government has had a number of inquiries, and over a period of time has been acting on those inquiries and the reports it has received. The process has been gradual, admittedly, but it has been safe and sure, with wide consultation. As the previous speaker, the member for Oxley, said, there are still a couple of elements to go, but they are not points to remark on or invoke criticism of. It is a continual evolutionary process, as Australia moves into a competitive global market. Australia is performing extremely well; we are punching well above our weight in all areas.
The Intellectual Property Laws Amendment Bill 2006 deals with three or four issues. The first is to provide exemplary damages to be awarded in cases of blatant or wilful infringement of a patent to increase the strength of granted patents. This strengthening process, one can say, is a good move. There have been criticisms within the Australian community, particularly amongst software providers, that it is too tough, but I do not believe so. I believe that Australian innovators and creative people need to have their creativity protected by strong patent laws. I think this is a good measure, one that needs to be implemented and one that I am delighted to see the government bring forward.
The second issue dealt with in the bill is to clarify the prior user defence in the Patents Act, which ensures that third parties who had used the invention before the patent was filed are not unduly adversely affected by the grant of a patent. Somebody who may have been working in the back shed and came up with a patent and made announcements of it but did not proceed to the legal processes could find that somebody comes in underneath them and claims it as their patent. The bill provides for a fairer assessment process with the granting of such a patent. There is a very wise and sensible process to ensure that there is fairness and that those who have innovative and creative minds are properly recognised and honoured by receiving the patent.
The third issue is to provide a competition test as an additional ground on which a compulsory licence to use a patent may be granted. That is an interesting provision and one that I will deal with a little later. I should add that other amendments included in the legislation will give effect to the outcomes of the recently concluded trademarks legislation review, but it will allow the Registrar of Trademarks to revoke the registration of trademarks in certain circumstances, providing a quick and inexpensive means of addressing incorrectly registered trademarks. There are a number of other minor amendments.
The bill implements wider springboard provisions. These are provisions that use the subject matter of a patent to collect the data required to obtain regulatory approval of a generic version of a product to which the patent relates during its life. That means getting ready to launch into a generic before a patent has expired. That will mean, on the immediate date of the cessation of the patent, a generic product can be produced. It has been said by elements within the pharmaceutical industry that this is a bit unfair. It is not unfair because Australia, on the day of the cessation of a patent in Australia, can immediately be confronted with generic imports hitting the market on the day that the patent ceases. All this does is allow Australian manufacturers to compete fairly and to be ready to manufacture on the date of cessation of the patent.
I think this is a sensible spring-boarding approach. It will not damage Australian industry. In fact, it tends to support Australian industry and Australian generic pharmaceutical manufacturers. It does not diminish recompense for the investment and research that has been entered into by drug companies in the development of pharmaceuticals. This is a process that is supportive of Australian industry and one that I believe will be successfully applied. It is the same sort of provision that competing nations, such as the US and the EU, have in place already—this is somewhat similar to their current regulatory processes.
One of the things of interest is the granting of a compulsory licence. It caught my attention because it seeks to redress anti-competitive conduct in the marketplace by using a right of a patent to freeze somebody out or to try to prevent the use of a product. Currently, the rights given to a patent owner do not include the right to behave in an anti-competitive manner that breaches other laws regulating anti-competitive conduct; therefore, the inclusion of a compulsory licence is a remedy. The law does not allow anti-competitive use, but this is an additional remedy that addresses the anti-competitive conduct relating to the patent and it will not weaken the legislative rights of the patent holder. In other places, such as Canada and the US, compulsory licences are available as a remedy to redress a patent owner’s anti-competitive conduct. So the test that covers this situation is where there is a non-working of an invention that has a negative impact on the public interest. But, where this does not relate to a competitive marketplace, a compulsory licence can also be issued in those circumstances.
In this area, we have had some criticism from both sides of the argument. Some have said that this raises the bar too high in allowing competition against patent holders; it just makes the lives of patent holders too difficult. But, on the other hand, the government really does need to address access to information and a product. The government has done this by setting a standard. It has aligned the standards for anti-competitive conduct under the Patents Act with those under the Trade Practices Act. That linking together has not been done elsewhere in the world. Patents legislation stands in its own right in most places, but in Australia we have linked it with the Trade Practices Act. That will make it clearer for patent owners what sort of conduct could give rise to a compulsory licence being granted. I think that innovation will be welcomed, as it is more widely understood.
I wish to draw to the attention of the House some of the wonderful innovation that is occurring in Australia and the processes of patent and trademark which may apply to them. In particular, the type of work that I think demonstrates Australian capacity in these areas is contained in the Spatial Interoperability Demonstration Project. This project has been entered into by a range of Australian industry groups, including the Australian Spatial Information Business Association—surveyors, geographers and people like that; the Open Geospatial Consortium; CSIRO Land and Water and the strategy division; Emergency Management of Australia; Geoscience Australia; Aurora Australis; and Shared Land Services in WA, from the Department of Land Information. These groups have come together and said, ‘We are using completely different systems of information, and the lack of interoperability of our systems is hampering the development and use of geospatial information.’ So, to cut across the different databases, forms and styles of keeping information, this project has drawn together for the first time anywhere in the world, I believe, the processes of interoperability—that is, the ability to link together spatial data, information and processing tools between different applications, regardless of software and hardware. I think I have used before in the House the example of what might have occurred in the Canberra bushfires had such a system been available at that time.
An example of interoperability in the spatial environment has been adopted by the Bureau of Meteorology. Its web services provide access to spatial data products by actively participating in several interoperability projects and in the development of a live, real-world demonstration of applications that access spatial information on demand. For instance, the bureau’s involvement in the Australian Water Data Infrastructure Project has enabled it to build the required infrastructure utilising existing hardware and open-source software and aligning the system architecture with the existing set-up of web servers. To me, that is a great advance. That is just one example of the way in which Australia needs to be able to move into the era of intellectual property and the protection of it.
I am delighted that the government is moving in these areas. I really value the intellectual strength of the Australian endeavour, and we need to protect it. It does not matter whether it is in the field of music—and that is something we are particularly dealing with today—or in science, medicine, the creation of computer aids or even in something as crucial as weather and geospatial information. I just want to see Australian work protected properly by patents and trademarks that are of world-class standard and that will make sure that the creativity of our people will stand against everyone.
Author: Hon Alan Cadman MP
Source: House Hansard - 22nd June 2006
Release Date: 22 Jun 2006