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26 May 2010

Implementing the TRIPS Protocol - public comment sought

by Mary Still

IPAustralia is seeking comment on the implementation of the TRIPS Protocol. In Australia, the Federal Court can order a patent owner to grant a compulsory licence, which would allow others to exploit the invention covered by the patent. Those products made under the compulsory licence cannot, however, be exported, which would be a problem if the products are pharmaceutical and there is another country suffering a health emergency.

If Australia implemented the TRIPS Protocol, compulsory licences could then be issued to produce patented pharmaceutical products for export to least-developed and developing countries.

The consultation paper sets out the following issues involved in implementation, and IPAustralia's proposed approaches:

  • the power to issue and amend licences
  • pharmaceutical products covered
  • eligible importing countries
  • criteria for ordering the grant of a licence
  • conditions on licences granted
  • challenges to a licence
  • Therapeutic Goods Agency issues
  • Australia-US Free Trade Agreement issues.
IP Australia will consider submissions and then make recommendations to the Federal Government. The closing date for submissions is 4 June 2010.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.