The amendments contained in the Intellectual Property Laws Amendment Bill 2013 (Cth) are designed to provide safeguards in relation to patent law and the public interest.

In the 2012 case on plain packaging, the Chief Justice of the High Court of Australia, Robert French, emphasized that the role of intellectual property law is to promote public objectives. His Honour observed: ‘There are and always have been purposive elements reflecting public policy considerations which inform the statutory creation of intellectual property rights.’ Discussing the role of patent law, Chief Justice Robert French commented:

The Patents Act 1990 (Cth) provides that a patent gives the patentee the exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention. Those exclusive rights are ‘personal property and are capable of assignment and of devolution by law.’ The origin of patents for inventions can be traced back to the Statute of Monopolies of 1623, declaring all monopolies void, subject to the exception in s 6 of that Statute that: ‘any letters patents and grants of privilege for the ... making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use’. That provision still forms part of the definition of ‘patentable invention’ in the Patents Act1990 (Cth). Its purpose was succinctly stated by Cornish, Llewellyn and Aplin: ‘the terms of the section make it plain that an act of economic policy was intended: the objectives were the encouragement of industry, employment and growth, rather than justice to the 'inventor' for his intellectual percipience.’

His Honour stressed: ‘Registered trade marks, designs, patents and copyright in works and other subject matter give rise to, or constitute, exclusive rights which are property to which s 51(xxxi) of the Constitution can apply’. Chief Justice Robert French stressed that ‘they are all rights which are created by statute in order to serve public purposes’. His Honour recognized: ‘They differ in their histories, their character and the statutory schemes which make provision for them.’

The Intellectual Property Laws Amendment Bill 2013 (Cth) is designed to provide for greater public safeguards in respect of access to patented inventions. The reforms are particularly important in the field of public health and access to essential medicines. In her second reading speech, the Honourable Yvette D’Ath, Member for Petrie, and Parliamentary Secretary for Climate Change, Industry and Innovation, commented upon the purposes of the legislative package:

The key to our intellectual property system is striking the right balance between encouraging innovation and providing equitable access to new technologies. A well-balanced IP system advances the interests of Australian innovators, by lowering business costs and by making it easier to access export markets. It also allows Australians to provide assistance to developing countries when it is needed most. And, to ensure that the balance is maintained, it is a system that has safeguards to ensure that intellectual property rights cannot be used to unduly restrict the community's access to new technologies. The Intellectual Property Laws Amendment Bill 2013 contains a package of measures that will make the Australian IP system more responsive to the needs of consumers, more efficient for Australian entrepreneurs, and more supportive of other countries facing health emergencies.

In a press release, Yvette D’Ath emphasized: ‘Safeguards that protect the community's access to new technologies are an integral part of Australia's patent system.’

In addition to the legislative reforms, D'Ath has commented that the Government would also undertake a number of measures to further clarify the patent system and strengthen mechanisms for oversight. She announced the Government will:

• appoint a Patent Audit Committee to advise on patent policy settings and undertake audits of patent approvals for certain technology groups, • commence consultations on a new objects clause for the Patents Act, and • consult on excluding certain inventions that would be offensive to the public.

D’Ath stressed: ‘It is important that the patent system strikes the right balance between encouraging innovation and providing equitable access to new technologies’. She observed: ‘The Gillard Government continues to review the operation of the patent system to ensure it operates in the interests of all Australians.’

It is worth emphasizing that a number of the proposed reforms in the Intellectual Property Laws Amendment Bill 2013 (Cth) have been mooted in a range of inquiries. The Australian Law Reform Commission recommended that the crown use provisions should be revised in its 2004 inquiry into gene patents. In 2005, the Advisory Council on Intellectual Property also reviewed the Crown Use provisions. In 2013, the Productivity Commission in its report on patent law and compulsory licensing was enthusiastic about modernizing the crown use provisions. The establishment of an access to medicines regime in Australia is long overdue.

It is a decade since the World Trade Organization established the WTO General Council Decision 2003 and a mechanism for the export of essential medicines. In 2004, there has been discussion about access to essential medicines in the context of the debate over the Australia-United States Free Trade Agreement 2004. In 2008, the Joint Standing Committee on Treaties recommended that Australia should ratify the WTO General Council Decision 2003, and expeditiously implement a regime to allow for the export of essential medicines. It is a matter of urgency that Australia fulfil its international obligations, and establish a fast, effective, and flexible mechanism for access to essential medicines – particularly in respect of HIV/AIDS, tuberculosis, and malaria.

The Advisory Council on Intellectual Property also undertook an inquiry into Plant Breeder’s Rights enforcement. The reforms in the Intellectual Property Laws Amendment Bill 2013 (Cth) pick up that inquiry.

The reforms in the Intellectual Property Amendment Bill 2013 (Cth) are necessary and urgent. The bill addresses matters of great significance – both for Australia and overseas. It is important to bring balance to Australia’s intellectual property regime, and to demonstrate our commitment to implementing international norms. It is a matter of urgency that such legislative reforms should be passed, before Parliament is prorogued.

Ideally, in the future, the Australian Parliament should consider further issues raised by the Productivity Commission in respect of patent law and compulsory licensing. There is also a need to develop a flexible mechanism to allow for compulsory licensing to deal with a wide range of issues of humanitarian aid and development.

Recommendation 1 The Australian Parliament should pass the Crown Use provisions in the Intellectual Property Laws Amendment Bill 2013 (Cth) as a matter of urgency to provide safeguards for the public interest in respect of patent law. Crown Use could be particularly useful in addressing access to gene patents; questions about information technology; patent trolls and vexatious litigants; and matters of public interest, relating to agriculture, food security, and the environment.

Recommendation 2 The Australian Parliament should implement the access to medicines scheme in the Intellectual Property Laws Amendment Bill 2013 (Cth) in order to meet its obligations under the WTO General Council Decision 2003. It is essential that the export of essential medicines be allowed to both members of the WTO, and non-members (such as East Timor). This is the case with the Canadian regime. In the future, the Australian Parliament should consider further patent law reforms to facilitate technology transfer and the export of humanitarian inventions to developing countries and least developed countries.

Recommendation 3 The Australian Parliament should implement the procedural reforms in respect to plant breeder’s rights enforcement in the Federal Circuit Court Intellectual Property Laws Amendment Bill 2013 (Cth).

Recommendation 4 The Federal Government should consider the role of IP Australia as a regional hub for intellectual property administration and policy. A Trans-Tasman patent attorney regime could be workable. Nonetheless, there is a need to ensure that patent attorneys are subject to strong regulation to deter gaming behaviour and improve patent quality.

Recommendation 5 The administrative changes and technical amendments to the Patents Act 1990 (Cth) should be supported.