Interaction between compulsory licenses and international treaty obligations

Issue summary

The operation of the compulsory licensing provisions of the Patents Act 1990 need to take into consideration Australia's international treaty obligations. Section 136 of the Patents Act 1990 requires that a court must not make a compulsory licence order that is "inconsistent with a treaty between the Commonwealth and a foreign country". In its 2013 review of compulsory licensing, the Productivity Commission (PC) considered s 136 problematic, because it reduces the transparency and scrutiny of the legislative process, and can also be a source of uncertainty for the parties. The PC favoured repealing s 136 and incorporating any current and future treaty obligations directly into the Patents Act or its subordinate legislation. The proposed amendment seeks to improve transparency and certainty for the parties.

History

• Consultation 30 August 2017 to 17 November 2017
• Policy development 20 November 2017
• Closed 23 July 2018

Comments

Following the Productivity Commission’s report, IP Australia considered this proposal and consulted on it in 2017. It was concluded that no further action is needed at this time. The consultation paper has further information on how this conclusion was reached.