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Thursday, 30 May 2013
Page: 4531

Mrs D'ATH (PetrieParliamentary Secretary for Climate Change, Industry and Innovation) (09:56): I move:

That this bill be now read a second time.

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.

The bill amends the patents, trade marks, designs and plant breeder's rights acts through a number of schedules, to which I turn now.

Schedule 1— Crown use

Crown use is an important, but rarely used, safeguard that allows governments to access patented inventions without the consent of the owner.

It is necessary for a government to have the power to be able to make use of patented inventions to serve the interests of the community.

Similarly, a patent holder should not be able to indefinitely frustrate the needs of the community, for example, by denying access to an important health technology.

This bill will amend the Patents Act to clarify the scope of Crown use and its operation.

It adopts recommendations of the Productivity Commission inquiry report into compulsory licensing of patents, which found there was uncertainty around the scope of current Crown use provisions, particularly in the context of health care.

The review was one element of the government's strategy to monitor the impact of gene patents in the community and to make sure that such patents do not lead to Australians being denied reasonable access to essential healthcare technologies.

Let me now mention the main changes.

Schedule 1 of the bill makes it clear that Crown use can be exercised when an Australian state or territory government has the primary responsibility for providing or funding the provision of a service.

This allows governments to authorise private service providers to use an invention in areas where governments have primary responsibility, such as health.

It strengthens governments' capacity to use this safeguard to address unreasonable patent holder conduct.

If the government deems it necessary and appropriate to intervene to address unreasonable patent holder conduct that could result in patients being denied reasonable access to health care, it would be willing to invoke these refined Crown use provisions.

The bill also introduces a number of measures to improve transparency and accountability in the exercise of Crown use.

First, it will require government agencies to attempt to negotiate with the patent owner before invoking Crown use.

Second, it will address current ambiguity around which bodies are considered to be the Crown for the purposes of the provisions. This lack of clarity may limit the use of the current provisions, or result in the provisions being inappropriately used. The bill introduces ministerial oversight to ensure that Crown use is being appropriately exercised.

Third, it will require the government to give patent owners the reasons for any decision to invoke Crown use. In an emergency, such as a pandemic, the requirements for prior negotiation and a statement of reasons before use are waived to enable a timely government response.

Under the current provisions there is no basis for determining the remuneration to be paid to affected patent holders when Crown use is invoked. Lastly, the bill will introduce a benchmark to reassure patent owners that they will receive a fair price for the use of a patent.

The bill provides important balance—for industry in protecting patents, while enhancing the government's ability to ensure that the community's access to technology is not restricted. Crown use will remain an important safeguard to address exceptional circumstances. However, these amendments will ensure that there is clarity and accountability in its scope and operation.

Schedules 2 and 3—TRIPS Protocol interim waiver and TRIPS Protocol: later commencing amendments

The next two schedules will enable Australian laboratories to manufacture generic versions of patented medicines under specific conditions and export these medicines to address health crises in developing countries.

Developing countries face enormous medical challenges. They are often unable to manufacture essential medicines themselves and cannot afford to purchase them through normal commercial means. The United Nations estimated that in 2010 approximately 260 million people were infected with malaria, HIV/AIDS or tuberculosis, resulting in 3.6 million deaths that year. Australians expect that the IP system will enable them to provide assistance where it is needed in the world and the Gillard government is responding. The bill delivers on the government's commitment to the Protocol Amending the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as the TRIPS protocol.

The changes proposed by the bill enable manufacturers of generic pharmaceuticals to apply to the Federal Court for a compulsory licence to make and export a patented pharmaceutical product. The Federal Court will have the power to grant compulsory licences, set conditions of use and amend the quantity of medicines required in the event that a health problem intensifies. Patent holders will receive adequate compensation to ensure that they are not disadvantaged by the arrangements. The proposed scheme is open to all developing countries, provided they meet specified criteria. The scheme is designed to be as easy to use as possible, while complying with Australia's treaty obligations.

Schedule 4— Plant Breeder ' s Rights Act 1994: Federal Circuit Court

Schedule 4 to the bill will make amendments to the Plant Breeder's Rights Act to extend the jurisdiction of the Federal Circuit Court, formerly known as the Federal Magistrates Court, to include plant breeders' rights. At present, civil proceedings under the Plant Breeder's Rights Act may only be commenced in the Federal Court and are appealable to the High Court. This can be a very expensive path. This amendment will deliver on a government commitment to provide rights holders with the option of a more speedy, cost-effective and less formal alternative for considering less complex plant breeders' rights matters.

Schedule 5— Australia New Zealand Single Economic Market

Schedule 5 to the bill allows for a single trans-Tasman patent attorney regime and single patent application and examination processes for Australia and New Zealand. These are part of a suite of intellectual property initiatives proposed under the trans-Tasman Single Economic Market agenda, and complementary New Zealand legislation is expected to be enacted in due course.

Currently, most patent applications filed in New Zealand are also filed in Australia but subject to separate examination processes in each country. Under the single examination model, patent applications for the same invention will be examined by a single examiner in either country. The regime will take account of the separate national laws and will lead to two separate patents for Australia and New Zealand. A single patent application process will remove duplication, drive efficiencies and reduce costs, making it easier for businesses to protect their intellectual property in both countries. The change will be good for Australian innovators and exporters, and avoiding a second examination process could save applicants hundreds or even thousands of dollars in professional advice costs. I understand that this is the first time that two countries have agreed to operate in this way anywhere in the world.

The bill will also facilitate a single trans-Tasman regulatory framework for patent attorneys across Australia and New Zealand. The Australian government has worked closely with New Zealand to establish a new framework that will include a single trans-Tasman register of patent attorneys, common qualifications for registration, a single Trans-Tasman IP Attorneys Board and a single Trans-Tasman IP Attorneys Disciplinary Tribunal. This is a logical and sensible step as the majority of Australian and New Zealand patent attorneys are registered in both countries. A single regulatory body will provide economies of scale, saving time, money and effort for the profession as a whole.

Standardised accreditation for patent attorneys will also give inventors confidence that they are receiving the same high-quality, informed advice on both sides of the Tasman. Removing barriers for patent attorneys and encouraging competition are key elements for productivity, innovation and industry growth for both countries. I understand that this is the first time that a profession will be jointly regulated across the Tasman in this way. This is a small but significant step forward for our economic relationship with an important trading partner.

These amendments will accelerate and strengthen trans-Tasman regulatory integration as part of the broader Single Economic Market agenda and build on our long-term commitment to create a seamless trans-Tasman business environment. I thank the New Zealand government for its support in this endeavour.

Schedule 6 (Part 1) Document disposal

Finally, schedule 6 deals with two minor matters. Part 1 makes minor administrative changes to the Patents, Trade Marks and the Designs Acts to repeal unnecessary document retention provisions. The retention and disposal of these documents is already comprehensively governed by the Archives Act 1983 and the records disposal authorities issued by the National Archives of Australia, and the amendments will reduce government expense in maintaining warehouse facilities for documents that are no longer required.

Schedule 6 (Part 2) Technical amendments

Part 2 of schedule 6 makes a number of technical amendments to the Patents Act to address minor oversights in the drafting of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. The raising the bar act introduced a wide range of IP reforms designed to help Australian businesses and researchers.


In all, this bill represents an important package of improvements to Australia's intellectual property system. It offers practical help for global health emergencies, advances our commitment to achieve a streamlined business environment between Australia and New Zealand, and clarifies and improves the transparency of an important patent safeguard.

I commend the bill to the House.

Debate adjourned.