07 March 2005
Melbourne, 7 March 2005: Unless Australia's patent laws are changed the development of its R&D industry may be under threat - and time is running out for those who might be impacted to make their voices heard on the issue, says leading intellectual property lawyer and Clayton Utz partner Wayne Condon.
Submissions to the Advisory Council on Intellectual Property's[1] review of whether patent rights may be inhibiting research and development were due on 28 February but the ACIP has indicated it will accept submissions up until 14 March. Mr Condon says it is important that key stakeholders make their views known to the ACIP on what is a critical issue for the future of scientific research and development in this country.
As the law stands, scientific and others bodies conducting research in Australia risk finding themselves on the receiving end of a claim for patent infringement where that research overlaps with the claims in a patent that has been granted. In circumstances where those bodies are not benefiting commercially from such research but are contributing significantly to the stock of scientific knowledge and endeavour, Mr Condon argues that the law, strictly applied, is doing the research community and the wider public a disservice.
"There is a need for clarity in the law as it relates to 'experimental use' to ensure that biotechnology companies, pharmaceutical companies and others engaged in the R&D field are allowed the freedom to carry out potentially life-changing research without the threat of infringing the patent rights of another," Mr Condon says.
"There is a delicate but important balance to be struck between protecting legitimate patent rights and permitting limited experimental use of patented inventions where the public good is at stake, particularly in the area of disease prevention and cure."
Mr Condon, who has practised in the area of intellectual property law for more than 25 years and has been involved in a number of Australia's leading patent infringement cases, says that changing the Patents Act to accommodate an 'experimental use' exception to patent infringement also stands to benefit patentees who may find their patents given even wider application identified by the experiments conducted on the patents.
Mr Condon urges all stakeholders and interested parties to use the extension for submissions to ensure their voices are heard.
The ACIP is expected to submit its final report to government in mid-2005.
[1] The Advisory Council on Intellectual Property is an independent body set up to provide advised to the Minister for Industry, Tourism and Resources and IP Australia on policy and administrative issues related to intellectual property
