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Thursday, 28 June 2001
Page: 28946


Mr ROSS CAMERON (10:43 PM) —This measure before the House implements a number of recommendations which are drawn from the government's innovation action plan for the future, Backing Australia's Ability. This is not a mere slogan. It is a comprehensive suite of policies across a broad range of government portfolio areas that is intended to tap and harness the characteristically inventive and ingenious quality of the Australian people. In particular, it stems from the recommendations of the Intellectual Property and Competition Review Committee's report Review of intellectual property legislation under the competition principles agreement and, secondly, the Advisory Council on Intellectual Property's review of enforcement of industrial property rights. As I mentioned, the foundation document Backing Australia's Ability involves a commitment of $2.9 billion in Commonwealth funding over the next five years. I would suggest that that represents the most significant individual commitment of resources to innovation that has ever been witnessed in Australian history.

The specific measure before the House strengthens the process of patent application and seeks to bring the Australian process for registering patents into line with what takes place in the rest of the world. This is a critically important objective because of the fact that knowledge is a global phenomenon. Australia has to place itself in a position both to harness the knowledge generated in other countries around the world and to ensure that Australian inventors are not disadvantaged— that we give them a platform from which they can project Australian innovation to markets around the world. We seek here to actually strengthen the requirements for registering a patent in Australia by a number of means, firstly, to ensure that the tests for inventiveness and novelty are strengthened by allowing the registrar to consider a wider body of material on inventiveness and, secondly, to submit a more stringent test than the benefit of the doubt test which previously prevailed. The amendments are consistent with requirements in other countries and will prevent patents being granted in Australia for inventions that would not be patentable in other countries.

The objective here is, as I said, to draw out, to harness and to develop the great Australian ideas. Many of us will have had the experience of constituents coming to see us with concerns about Australian ideas being lost to the rest of the world, of Australian inventors having difficulty accessing capital, registering their patents and developing them in Australia. In fact, the Prime Minister pointed out in his own introduction to the Backing Australia's Ability package a number of those inventions which we have seen go offshore. Among them, for example, is the black box technology in aircraft, which was invented here in Australia but was developed overseas; likewise, the gene technology process, which was invented in Australia but was developed overseas. We are looking to ensure, through this measure and through the entire Backing Australia's Ability package, that more of those good ideas are developed commercially here. There are two things that we are seeking to achieve: firstly, we want to retain the benefit of commercial development of the ideas in Australia; and, secondly—and this is a critical objective—we want to retain the brains in Australia. We want to retain the best and the brightest people in Australia. We do not want to see a situation where our most brilliant postgraduate students, for example, cannot find places in Australian institutions—


Mr Anthony —Brilliant students like the member for Parramatta.


Mr ROSS CAMERON —The minister at the table is overly generous—but certainly brilliant students like those in the member for Parramatta's electorate. For example, my electorate has the most concentrated health research precinct of anywhere in Australia, with two teaching hospitals, Westmead Hospital and the New Children's Hospital. Around them is a concentration of medical and biotechnology research, such as the Children's Medical Research Institute and the Westmead Millennium Foundation. I might add that the Westmead Millennium Foundation, in the last two years alone, has registered 12 new patents in critical areas of diagnostics in particular, which are making the world safer, which are saving lives and which are also keeping the 300 medical researchers based at those two centres here in Australia, under intense pressure from competitive institutions in other parts of the world. That is the objective.

It is not just rhetoric on the part of the government. We have backed our verbal concerns with a concrete allocation of resources. The Backing Australia's Ability statement includes an R&D tax concession rate of 175 per cent for additional labour related R&D expenditure, it gives $535 million over five years to continue the research and development start grants and it doubles funding for the Australian Research Council grants over the next five years. For what it is worth, I am currently pitching to the Prime Minister and the minister that, under the Backing Australia's Ability statement, we now have a capacity to create world-class centres of excellence in information and communications technology and to create major national research facilities to undertake large-scale research of national significance. There could be no more appropriate place to make that investment than in this health research precinct that we have at Westmead.

There are two, if you like, competing challenges in this task of the creation and dissemination of knowledge. The first is to give sufficient incentive and reward to the individual inventors to encourage the process of invention, and the second is to do that in a way that does not unduly inhibit the dissemination and use of that newly created knowledge. They are the two interests which we are attempting to balance in the measure before the House.

The member for Fremantle mentioned a concern about the grace period. The grace period is intended to ensure that an inventor who comes forward seeking a patent and who is unsuccessful in the first instance is given an opportunity to address the defects in the original application. It is a matter of natural justice, if you like, that you should not be faced with a precipice situation where you either completely succeed or completely fail, with just a one-off opportunity to present your case. The legislation rightly allows this grace period so that the inventor might have an opportunity to meet with the registrar, to go through individually the concerns raised with the registrar, if necessary to contest the questions raised in relation to inventiveness and novelty, and if possible to rectify those defects before all of that work in generation of the original application is wasted. The concerns about the grace period have been specifically addressed by the government in this measure. The Backing Australia's Ability statement clearly announced the government's intention to introduce a grace period. The Patents Amendment Bill 2001 does not contain amendments to implement the grace period, but the grace period will more appropriately be implemented by making amendments to the Patents Regulations. There is still ample opportunity for any interested groups to provide input into the details of its implementation.

The bill is consistent with the exhaustive and rigorous process of consultation which has taken place since the government fulfilled its undertaking in the 1998 election to have a National Innovation Summit. This document arises out of the recommendations which were conceived at the Innovation Summit, were further considered by the Intellectual Property and Competition Review Committee and subsequently by the Advisory Council on Industrial Property. We hope that the intellectual property community—if I can describe it in that way—will continue to grow and flourish. That community has warmly welcomed this commitment of $2.9 billion in funds for this legislation and has had an extensive input to the development of the legislation.

This capacity for invention, innovation and novelty is a uniquely human capability. It is one of the things which, I suggest, distinguishes us from the rest of the animal kingdom. We are not beings that respond purely by instinct. We are not creatures of the jungle who act entirely on the basis of our genetic code. We have been given this unique, some might even say divine, capability to imagine a world different from the one in which we exist today. Management consultants, when looking at the difference between companies that flourish and those that wither away, have identified a concept described as latency. Latency is the question of how effectively an organisation recognises a good idea, promotes it through the decision making hierarchy and then acts upon it, producing some positive outcome, some change in culture. We as a nation must recognise this tendency to latency, to inertia, the tendency of human beings to be conservative, reactionary and to resist that which is new and different. For example, in this parliament we need to have a capacity to encourage debate, to nurture new ideas and to lift up those who are providing a fresh perspective.

Recently, I mentioned the great sadness that many of us on this side of the House have felt, for example, when the member for Werriwa—clearly a person of significant intellect, who has been widely published— came forward, having spent months and months in consultations developing a new education policy, but that policy was simply too startling, too innovative, too refreshingly different to survive that little cadre of nameless powerbrokers within the ALP who usually occupy the advisers' desks over there. Although not elected, they seem to be the ones who wield the real power in the organisation. So we saw, in the case of the member for Werriwa, a crushing of innovation and a statement by the Australian Labor Party that that sort of fresh thinking could simply not be tolerated; that, while Great Britain was capable of producing New Labour, it would be very much business as usual here. I do not want to make a purely partisan point. All of us need to have the capacity to tolerate difference, to be appreciative of the new. This bill is a step towards that in this patent registration process.

The question of prior art is really the basis upon which novelty is established. An inventor has to be able to demonstrate that the idea which he or she is promoting as new has not been thought of by someone else, either in Australia or somewhere in the world. Fairly exhaustive searches of the prior art take place before any particular patent is submitted for consideration. The bill now requires the searches undertaken by the patentee to be disclosed to the registrar. This is an important new safeguard in the legislation. It is important because it means that we do not have Australian inventors who go through all the work of preparing a patent and believe their intellectual property to be adequately protected, only to find, when they seek to exploit the patent in some other jurisdiction, that a court finds that basic principles of novelty have not really been established.

What you see, contrary to the assertions of the member for Fremantle, is not Australia falling behind the rest of the world in this measure; it is specifically designed to ensure that Australia can participate as peers with the rest of the world. As I say, it follows an extensive period of consultation and has had the input of the legal profession specialising in intellectual property and of the inventors themselves. I regard it as a sensible compromise between those two goals, providing incentive and reward to the individual patentee while allowing the dissemination and exploitation of new knowledge. I think it is a thoroughly worthy measure and I commend it to the House.