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26 Jun 2012

Implementing the TRIPS Agreement in Australia - what's happening?

by Mary Still, Simon Hardwick, Noah Hong

Mary Still, Simon Hardwick and Noah Hong

In November 2001, Doha, Qatar held the fourth WTO Ministerial Conference which adopted what is known as the Doha Declaration on the TRIPS Agreement and Public Health. Key to the Doha Declaration was the reaffirmation that governments should interpret and implement the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in a manner supportive of WTO Members' right to protect public health and promote access to medicines.

Fast forwarding to 22 March 2011, the Federal Government of Australia announced its intention to implement Australia's obligations under the TRIPS Agreement while apparently mindful of the Doha Declaration.

The Bill

Currently, Chapter 12 of the Patents Act 1990 (Cth) does provides a regime where the Federal Court of Australia may grant compulsory licences to work a patented invention, albeit in limited circumstances. The Bill is expected to provide clarity to the Federal Court and enable it to grant compulsory licenses to manufacture and export patented pharmaceuticals to countries facing epidemics and health crises.

Senator Carr stated in the 22 March 2011 announcement that "the new system will enable a country that is experiencing a serious epidemic to ensure that its own population is supplied with vital treatments". In light of the above, developing countries experiencing a health crisis should be able to buy vital medicines from Australia at a more affordable price.

Impact on the Australian pharmaceutical industry?

The Government further stated in the 22 March 2011 announcement that it will support and encourage the innovation, investment and international competitiveness by ensuring that patent owners will receive adequate compensation for any licences issued. Furthermore, there will apparently be measures in place that will help ensure that pharmaceuticals exported under the system are not diverted to other markets, but only reach those in need.

The Government has listed the Intellectual Property Laws Amendment (TRIPS Protocol Implementation) Bill for introduction for over a year, but as at 26 June 2012, it has not yet been introduced or read for the first time.

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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.