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Thursday, 29 May 2003
Page: 15508

Mr BILLSON (10:03 AM) —I open the batting on the Intellectual Property Laws Amendment Bill 2002 a few weeks short of the 12-month anniversary of its introduction into the House by the Parliamentary Secretary to the Minister for Industry, Tourism and Resources. Essentially, the bill seeks to amend the intellectual property laws by some technical amendments which really bring about a refinement of some changes that were made not too long ago through the 2001 amending law.

There are two key areas that the bill addresses. One is identifying that an extension of time is justified for applicants where contractors and providers of services to those applicants have failed to deliver on what they promised. Members would be aware that there are certain timetable requirements under the law for getting patent applications and supporting material in to IP Australia. But, if by chance the courier or someone is detained or there is a blockage in the Citylink tunnel in Melbourne and they miss that deadline, there is no provision under the current law to provide for an extension. There is an extension available if the Commissioner of Patents is the cause of the delay. That is neat, that is handy, but there are other factors that can bring about delays in the timely provision of information in support of an application. That is one area of the law that is being addressed by a technical amendment.

Another area relates to the disclosure of information. As part of the Backing Australia's Ability policy initiatives the government was committed to refining and in some cases expanding the scope of searches carried out in support of patent applications. The idea behind that was to make sure that patents granted in Australia were robust and reliable and had addressed all reasonably available information.

One of the issues that arose from the patent profession shortly after the introduction of that amendment was that it was not as sharply defined and as clear as some would have liked it to be. The result of seeking to sharpen the focus of the information that had to be provided in support of patent applications was not an amending law being put in place. Applicants holding potentially useful and valuable information they had uncovered through their own searches—often through overseas patent offices and patent search companies—that could be and should be provided to the Commissioner of Patents did not have to provide that information under the law as it stood. So it had probably gone a little too far in being as specific as it could be about the information that needed to be provided. Questions were asked. If an applicant had this material at their fingertips, why not provide it? Why not share that with the Commissioner of Patents to make sure that our patents system in Australia is as robust and as well informed as it can be and that the relevant information that is available is in the hands of the commissioner?

Essentially, the Patents Act, the Trade Marks Act and the Designs Act provide that a person needs to be granted an extension of time if the time period has not been complied with because of an error or omission by the commissioner, the Registrar of Trade Marks, the Registrar of Designs or an employee of IP Australia. IP Australia often uses the services of independent contractors or consultants during the processing of applications—such as couriers, to use the example I provided earlier—to transport documents from a state office to the central office in Canberra. There is a concern that the extension of time provisions that currently exist may not encompass errors or omissions on the part of these parties. I have given you an example of how that would work. That amendment clarifies the capacity for time extensions to be granted where errors or omissions occur as a result of someone working on behalf of the process—that is, someone who is supposed to be helpful in facilitating the lodgment of that material—for some reason not delivering their side of the bargain.

I will explain further the issues around the provision of information. The patent attorneys themselves have had something to say about the way the earlier amendments in the 2001 act have been operating. It has become apparent to both the government and the IP profession that those initial amendments lack some clarity and do not fully implement the government's policy objectives. The amendments in this bill will require that only the results of searches conducted by or on behalf of foreign patent officers are required. This should not significantly reduce the amount of relevant information that is disclosed and is a much clearer requirement.

Although these amendments will not commence retrospectively, they will have a retrospective effect because they will apply to standard patent applications that have been accepted prior to 1 April 2002 and to innovation patents for which examination had not begun before that date. In this way the new disclosure regime will completely replace the old one and give the clarity and focus that the industry and the government through its Backing Australia's Ability policy were looking for. Through that regime and the transitional arrangements, no applicants or patentees should be disadvantaged by the provisions that are being introduced.

I guess the key thing is that patents are not a precise science. In fact, they seek to identify art. You will see that patent laws and journals that address intellectual property ask: `What is the art? What is the contribution? What is the creativity that has gone into the innovation someone is seeking to claim ownership of?' It is dealing with an art, and making sure that the art is done well is also a bit of an art! Here the question is: how do you get clarity and certainty if someone is claiming ownership of an idea yet at the same time not impose an unreasonable burden on those applicants? Narrowing the scope of the information that is covered by these provisions but ensuring that they are effective in their disclosure function should reduce the burden on applicants and patentees while ensuring that the system is robust and reliable.

When we look at what this means for the average person on the ground, the key driver is: what is the burden on the applicants, and how can we relieve that burden and not weaken the system? The burden is on the applicant to discover all searches that are made within their organisation—whether or not these are known to the inventor. For example, where a university is a patent applicant and the inventor is a staff member, the university is obliged to disclose all searches made by the inventor and by the organisation; and, where they are not known to the inventor, there is onus on those who are working with the inventor to contribute to that disclosure information.

The Australian Academy of Science has observed that it is sometimes difficult for a university to organise and fund search activity that will satisfy that provision. It is hard to know about all the work that is going on right around the globe, and it is sometimes difficult to identify what level of search needs to be undertaken. Do you simply contact the relevant departments at other universities around the globe? Do you go through your own collaborative networks? Are you sure you are even asking the right people? It is a difficult task. So where there is that lack of clarity, the scope of the searches becomes unclear. Searches are normally conducted on the invention, whereas the application may contain other information that is also the subject of searches. Wording of the amendment as it was originally prepared in 2001 left open the possibility that irrelevant information may be disclosed and quite relevant information may not be provided.

John Hearn is a man whom I deeply respect and admire—he is the vice-chancellor of research and innovation at the ANU. He is very supportive of the bill and his point is a simple one. He said:

Anything that simplifies the disclosure process is good so long as the integrity of the process is maintained.

It is also important that Australia preserves the integrity of the disclosure process and insists that America do the same. Currently the US don't have to provide disclosure but can claim ideas by showing scribbles on notebooks indicating that they had thought about an idea.

Another big issue is instances where large American companies fund any work undertaken, they will insist on having all the intellectual property on the work carried out.

I emphasise the importance in protecting Australia from the US—

a trading partner and friend—

claiming prior knowledge just because they have some notes on an idea and insisting that where a US organisation funds an idea, disclosure is claimed.

These kinds of issues are the unspoken questions behind trade. If you and I were in the United States and we stumbled over half an idea, we could actually get some patent protection for a limited time—usually 12 months—while we fleshed out the idea. That is not a feature that is available in many other countries. The idea of notes—scribbles, in fact; ponderings, doodles—as evidence that you had actually thought about an idea is, I think, a bit of a head start that US corporations and US inventors have over many other countries. I think we need to keep an eye on that. We need to make sure that we do not lose sight of this in matters of creativity, trademarks and the like—just as in other areas of commercial law—where we have some harmonisation going on with the United States. This is a huge trade advantage.

I remember talking with a leading expert on this subject at Stanford University a few years ago. I said, `What do you make of this?' and he said, `Yes, it is unfair. It gives the US an unfair advantage over other innovative nations, individuals and corporations around the world.' I said, `What do you think should happen about that?' His view was, `Nothing will happen in the US. Congress will not touch it, because it is an advantage for their corporations.' His concern was that others might seek to embrace this less rigorous, less onerous way of evidencing ideas and that you would then have a gradual unwinding of the rigour and robustness of the patents system. I would hate to see that happen. I do not think we should turn our back, just because it is difficult, on what is a competition issue with a major trading partner; that is, sometimes their ideas—unfulfilled, unconcluded and incomplete—actually get a legal status that would not wash in our country. I do not think that is really the way to go.

Another issue I would like to talk about before wrapping up—and one which I have spoken about three times in the parliament since I was elected in 1996—is the efforts at claiming ownership of genes and gene sequences. There are some examples of corporations that have sought to protect their investment in unravelling the genetic mysteries that make up us humans. Where they have stumbled over something, they have sought to claim ownership of it. I find that a troubling idea, and I think that we need to be open to a better way of addressing that direction. In previous speeches I have given some examples of where I think inappropriate patents have been issued. I will give you another example. If you and I were walking through your farm property, Mr Deputy Speaker Causley, and we kicked a cow pad out of the road and found some shiny gold metal there, we would say, `Gee, that is interesting. I wonder what that is? It's gold. We found it first, so we own all the gold around the country.' We know that is obvious nonsense, but in genetics that is partly what is going on. If someone finds something first, having added no value, having shown—to use the legal term—no art, no creativity, no value-add and no input, they are claiming some ownership over it just because they found it first.

I do not mind those people claiming ownership of the technology and the technique they used to discover that genetic sequence or that insight. I do have a problem, though, where someone seeks to claim something that is simply a discovery and not a creation; where they seek ownership over something that naturally exists. Because we have not had the technology in the past to locate it, that does not mean that the first person to locate it should own it. I think this is a worrying area in patent law where the huge investments of research and development funds are sought to be recovered by ownership of what is discovered. Discovery is not creation. Finding something first is not an art, and it should not be owned.

How we find a balance between the funds needed to do the research and development in the first place and not giving away ownership of naturally occurring phenomena is a difficult issue. It is an issue that I am pleased the government is at least open to addressing. The Democrats—and I have some sympathy for what they were trying to do in 2001—were seeking to prevent the patenting of naturally occurring genes and gene sequences and their descriptions of base sequences. That proposition was not embraced at that time, mainly because people did not quite know what it meant. It was accepted that the issue of patenting of genetic material was an important one that needed proper and careful consideration.

The issue of patenting of genes was debated extensively in December last year. During that debate Senator Patterson announced that the Prime Minister had agreed to an inquiry by the Australian Law Reform Commission into intellectual property issues associated with genes and genetic technologies, with a focus on health issues. That was a welcome announcement, and the Attorney-General and Senator Patterson formally announced the inquiry and released its terms of reference on 17 December 2002.

The government does recognise that the patenting of genetic material is a sensitive and important issue, raising fundamental concerns that include moral and ethical issues, the impact on freedom of research in Australia and ensuring that Australia has the latest technology. The inquiry by the Australian Law Reform Commission will be headed by Professor David Weisbrot. It will examine the impact of current patenting laws and practices on the conduct of genetic research and its subsequent application and commercialisation. It will also examine the effect of these laws and practices on the Australian biotechnology sector and the cost-effective provision of health care in Australia. We can expect that the inquiry will be completed by 30 June 2004.

This bill should simplify the process by targeting and streamlining the supporting information requirement, without jeopardising the integrity of Australia's disclosure process. The changes have been proposed following research into the existing system. Our experiences have identified some shortcomings, and that is what is being addressed here. It will reduce the burden on applicants and patentees, but it will ensure that, if those applicants and patentees have some information that is useful, relevant and informative, it is made available to the commissioner. It will help to clarify and streamline the existing process. It should reduce the financial cost on applicants and should maintain and reinforce Australia's strong patent system. For all those reasons I think we should support the bill.