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Monday, 27 February 2012
Page: 876


Senator BOYCE (Queensland) (20:33): As my colleague Senator Colbeck has pointed out, the coalition is broadly supportive of the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 as a result of not only the inquiries that took place but also the extensive consultation undertaken by the coalition with business, industry representatives and the legal profession. Public consultation on this bill started in May 2009, and there were some issues raised during those consultations, but the majority of industry is urging this parliament to proceed with the bill.

I am a passionate advocate of the Australian intellectual property system. Our system of trademarks, patents and registered designs is the absolute underpinning of industry and service provision in this country. Without it there would be fewer products, less commerce and much less happening in Australia. I took part, as did my colleague Senator Heffernan, in the gene patents inquiry. Whilst I am sure that Senator Heffernan will want to talk a lot more about some of the issues there, there are some very well-intentioned people who have some serious issues with the patent system as it currently is in Australia. In my view, we cannot sacrifice the broad intellectual property system in Australia for the sake of some quite narrow concerns. Not unreasonably, one of the primary issues that has to be dealt with is what constitutes a discovery—which of course is not patentable—and what constitutes an invention. This was certainly dealt with a lot in a narrow context within the gene patents inquiry, but it is a far broader issue than the use of gene patents. It applies right across our entire patents industry.

Other concerns that were raised during the inquiries were around the reasonable use of patented materials for research and looking at better ways to undertake testing. It does not apply just in the gene patents area. Concerns were also raised by academics—who of course are not patent lawyers—about what they could do in terms of legitimate research using patented products and what they could not do. Currently, in the law, there are no statutory provisions clarifying researchers' freedom to conduct experiments. There is uncertainty about the scope of any existing common law protection and this leads to inefficiencies in research. Researchers are discouraged from taking up new lines of research when there is uncertainty about their liability for infringing a patent. That uncertainty can lead to researchers who, in Australia, are not the best resourced people to spend a lot of effort and expense trying to find out whether they are going to be behaving legally or illegally. The bill seeks to actually give them the opportunity to be very certain about where their research sits within this framework.

There was evidence given during the gene patents inquiry that in fact this law was unnecessary because reasonable research was acceptable under the law as it currently stood. However, we heard that evidence from very well resourced, very large medical groups. It was the smaller groups, who perhaps had the best opportunity to come up with some interesting research, who were very worried about whether they could go ahead with that research and simply did not have the in-house resources to know the answer. This bill is designed to fix that aspect.

The other concern that was raised during that inquiry was the interaction of regulatory approval processes with the patent legislation. Obviously, regulatory approval processes are extremely important in ensuring that Australians have good-quality, high-standard, safe products in every aspect. But we did not want unintended consequences of the interaction of those regulatory processes with patents law, which basically meant that in some cases patent terms could be extended well beyond the maximum 20 years. This activity was known in other places as 'evergreen'. It is an unintended consequence that a company, by somehow tweaking a patent, may have the opportunity to extend that patent well beyond the original 20 years they were given for the patent.

We need to think about why patents exist. What are they there for? They are there to encourage and reward innovation and clever invention. No company is going to spend the money that is required in researching and developing new products, new technologies and new ways of doing things without some sort of sense that they can recoup their investment by having what is effectively a monopoly in a field for a certain length of time. In the majority of cases this is up to 20 years.

I hoped to speak a little bit about the history of intellectual property in Australia, because we are very good at it. We introduced the first prepaid postal system in 1838; the first combine harvester in 1882; the first automated locomotive brake system in 1904, which was in fact the first-ever patent that was issued under Australia's law; and the first electric drill. How would half of Australia cope at the weekend without the invention of the first electric drill, which was patented in Australia in 1889? In 1926 we patented the world's first electronic pacemaker. Think about that: 1926. There have been improvements on that since. There are hosts more: the tank used in warfare, the box kite, the wine cask. We were even the first people in the world to codify and afterwards copyright a kicking ball game. That was in 1875 when the 10 basic rules of Aussie Rules were developed and, as I said, copyrighted. Vegemite is another creation that was protected by IP statutes in 1922.

The Australian Patent Office in fact opened in Melbourne in 1904, but the Australian government's involvement in protecting Australian innovation and development began in the previous century with the individual state registers of trademarks, patents and copyrights. It was in 1904 that we got our act together nationally. I was quite interested to look at some of the statistics provided by Intellectual Property Australia, which is the organisation we have to thank for the impetus behind the amendments proposed in the Raising the Bar bill. In 2010 the United States, perhaps not unsurprisingly, led the world with over 10,500 patent applications. But we came second. There were 2,409 patent applications in 2010 from Australia. In the world of trademarks, as opposed to patents, we came first with 68,241. There may well be an argument to say that this simply means that it is too easy to trademark something in Australia. There may be some truth in that. But it is not just about that. It is also about the fact that we are a very innovative and inventive nation. Without legal support for that, it is not going to continue.

I am indebted to IPA who used the Sydney to Hobart Yacht Race as an example of how intellectual property underpins so many aspects of our lives. What do you see as the race starts? You see brand names, logos and trademarks. The race is core marketing for major corporations. But without those brand names, logos and trademarks and the safety, protection and security of them, this would not exist. We are talking millions of dollars when you add in naming rights, broadcast rights and the brand-naming sponsorship of crews. Whether this marketing investment would happen without the protection of the intellectual property of those companies through their registered trademarks is another question.

Philip Noonan, the Director General of IP Australia, said:

A registered trade mark is bit like putting a barbed wire fence around your brand. You're warning competitors to stay away as you own the rights to that word, image or logo.

I know that there are views that people should not actually be able to own words, images or logos to patent inventions or to trademark names and products. But without this Australia is not going to survive as a commercial or industrial society. Without the money trademarks create, the Sydney to Hobart yacht race broadcast itself would be of poorer quality. There would not be live satellite crosses, onboard yacht cameras or views from helicopters, because all the technology used to create all of those is in many cases patented. It would not happen without a patent system.

Stan Honey, a legend in the international sailing community and part of the Investec crew for last year's race, has 21 patents for TV special effects and eight for navigational systems. A world without intellectual property, without patents, would mean slower boats. Racing yachts are in fact made from patented materials that are also used in the aeronautical and motor racing industries. The locator beacons, the Gore-Tex, and I should probably draw the little circle with the 'R' in the middle, the foul weather gear, the Spectra and Dyneema ropes, and the Kevlar sails are used—and, again, we need all those registered trademarks—and are all supported by trademarks and by intellectual property.

Patents, as I have said, are granted across a very, very broad array of products and processes, from industrial machinery to pharmaceuticals and even to toys. They represent innovation, improvement and advancement. They apply in every part of our lives, and it is quite interesting sometimes to look at some of the history of them. The can-opener, for example, was a patented product. The seatbelt was a patented product. In 1879, a 'parachute hat' that was designed to allow the wearer to leap safely from a burning building was patented. I presume from the fact that we are not all running around with a parachute hat in our back pocket suggests that this was not one of the world's greater inventions.

According to a 2009 report by the Department of Foreign Affairs and Trade, Australia now ranks—and I think I earlier gave the figures on our trademark and patent applications—amongst the top innovative economies in the world, with the total value of Australia's intellectual property standing at about A$30 billion. One of the key components of our innovative economy is our intellectual property regime. I could go on to talk considerably more about the intellectual property regime in Australia, but I want to congratulate IPA on the work that they have done to develop the amendments to our legislation that are contained in the bill and to acknowledge that intellectual property in Australia applies across a very broad field of activity. It is not limited to one or two products.

I congratulate IPA on the work they have done in getting this to the stage where it becomes legislation in this house and the fact that we now have the chance to pass legislation that will not just support and underpin research and further invention but also ensure that the activities that are undertaken by people who hold patents are legitimate and recognise honestly their need to make a profit out of their product without it giving them the opportunity to pork-barrel those inventions into the future. I think this legislation is a good start. There are some concerns about it, but it is a balanced approach to underwriting, supporting and strengthening an absolutely crucial part of the structure of our economy.