Compulsory Licensing of Patents in Australia: Reforming the Landscape or Fencing Us in?
journal contributionposted on 29.10.2019 by Tyrone Berger
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The Australian Productivity Commission released its final report to government into the compulsory licensing provisions of the Patents Act 1990 (Cth) on 28 March 2013. Its stated focus, however, is on the operation of compulsory licensing in Australia more broadly. Accordingly, it considered related parts of the Act, for example, the Crown use provisions and specifi c technology areas involving Standard Essential Patents, which have not undergone the same level of scrutiny in the past. One of the motivations for the inquiry was to assess whether the compulsory licensing provisions can be invoked effi ciently and effectively, given the substantial costs and lengths of time associated with obtaining a Federal Court order. Despite the risk of signifi cant barriers for potential applicants, the Commission found that there were no clear alternatives to the current arrangements, instead choosing to improve the criteria for granting a compulsory licence by introducing a public interest test. Before accepting the Commission’s recommendations in their current form, it would be judicious for the Federal Government to ensure that the shortterm interests of the public do not detract from the long-term objectives of the patent system.