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Monday, 27 February 2012
Page: 886

Senator HUMPHRIES (Australian Capital Territory) (21:23): I want to make a brief contribution to this debate. I participated in the Senate community affairs committee inquiry into the private member's legislation that proposed to deal with the way in which patents relating to genetic material are dealt with. I think all the participants in that inquiry—and it was a very substantial inquiry—came away with somewhat more knowledge of the patents laws of Australia than perhaps they really wanted to have. But it did demonstrate very amply, I think, to those who participated in the inquiry that intellectual property laws in Australia are creaking and groaning, are in need of overhaul, have not kept up with the changing way in which technology is impacting on the process of industrial manufacture and invention and that there needs to be a revision of some of the concepts within our legislation.

Many pointers to those findings were available to the committee, particularly things like the report of the Advisory Council on Intellectual Property and at least one report by the Australian Law Reform Commission. The fact that it had been quite some time since these reports had been tabled—in the case of the ALRC report, at least—suggested not only that these were important and complex issues but also that the difficulties associated with understanding the implications of the changes recommended had caused some lack of movement on the part of those in government who are responsible for progressing the sorts of reforms which have been identified.

So the legislation that we see before us today has been brought forward. I welcome this legislation. Although, as other senators have said, it does not solve the sorts of problems I have just referred to with respect to Australia's intellectual property laws, particularly its patent laws, there are welcome steps forward in this legislation and it does deserve the attention which the Senate now gives it to ensure that issues such as research are addressed in a more contemporary way than is evident in the existing legislation.

I particularly welcome the provisions relating to research. There is claimed to be uncertainty about the scope of protection at common law for those who seek to use existing patent material or patents as the basis for their ongoing research. The fear that a person might conduct research, make a significant finding and then find that they are unable to use that discovery because they have infringed someone else's patents is alleged to be a significant barrier towards proper research in Australian companies and, in particular, not-for-profit organisation such as universities and research institutes. The evidence of that barrier to research is not as plentiful as some have suggested. But I suggest that some clarification of what a person may do when they are conducting research in an area where patents already exist does need to occur. As such, the step forward in this legislation is important.

This bill provides an exemption for activities undertaken solely for the purpose of gaining regulatory approval to market or manufacture a patented technology. The effect of this expands the existing exemption for pharmaceutical inventions to all technologies. That provides a measure of certainty, which is important, and I welcome that very much.

There is more precision required from patent applications than has been the case in the past. Senator Xenophon made reference to the ambit claim approach which so many patent applications appear to have made in the past—and, I think, fairly did make in the past. This legislation appropriately limits the scope of that and requires more to be demonstrated by the patent applicant than has been the case in the past.

I think it also needs to be recorded, however, that Australia's intellectual property laws do not operate as an invention of the Australian legal system. Our intellectual property laws are very much a reflection of international property regimes around the whole world—and we depart from those norms at our peril. We have to acknowledge that most of the companies around the world that use patents to bring products to market—products which are efficacious to health, agricultural production, manufacturing and all sorts of other purposes—will generally want to own patents in every country where their products might be produced or sold. If the regime applying in Australia is dramatically different from the regimes applying elsewhere, it is hard to do that, and Australians might miss out because we do not share the common approach, broadly speaking, of other countries in the world.

I do not want to use this debate to rehearse the many arguments that took place in the community affairs committee about the patenting of genetic material. I would simply say that some clarification of the law needs to occur. It is provided for here, at least in part. I want to associate myself very much with Senator Colbeck's remarks that further work needs to be done and the concerns of a number of parties who submitted to the examination of this legislation that it has not been addressed fully and does need to be addressed. I look forward to this legislation being an important first step in getting a better state, a better functioning intellectual property system, than Australia currently enjoys.