31 Aug 2017

Federal Government responds to Productivity Commission Inquiry into Intellectual Property Arrangements

By John Collins, Timothy Webb and Mathew Fenwick

While broadly supportive, the Australian Government has indicated that it will proceed cautiously with the implementation of the Commission's recommendations.

The Australian Government has responded to the recommendations of the Productivity Commission Inquiry into Intellectual Property Arrangements. That report courted considerable controversy having recommended a series of foundational changes to Australia's intellectual property laws. Overall, the Government's response can be characterised as restrained but broadly supportive. We outline below the recommendations and responses that are most relevant to industry participants.

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The Australian Government response suggests a cautious and consultative implementation of the Commission's recommendations that were supported or supported in principle. The Government appears particularly concerned about the form that any reforms may take and has proposed extensive public engagement.

Public consultation by IP Australia

IP Australia has acted quickly following the Government’s response to the Productivity Commission report - it has now commenced public consultation on five IP policy matters, four of which form part of the proposed implementation of that response, and one of which relates to a trade marks issue:

  • Amending inventive step requirements for Australian patents - this paper puts forward options for changes to the Patents Act 1990, and the guidance that would be included in the explanatory materials accompanying the changes;
  • Introduce an objects clause into the Patents Act 1990 - this paper discusses options for the precise wording of an objects clause to set out the purpose of the patents legislation;
  • Amending the provisions for Crown use of patents and designs - this paper discusses options for reform of Crown use provisions for patents and designs;
  • Amending the provisions for compulsory licensing of patents - this paper discusses options for the reform of compulsory licensing provisions for patents;
  • Introducing divisional applications for international trade marks - this paper discusses the introduction of divisional trade mark applications for international registrations designating Australia filed under the Madrid Protocol, plus consequential proposals to harmonise and amend the existing practice in Australia for dividing domestic trade mark applications to align with the new IRDA divisional procedures.

IP Australia invites interested parties to make written submissions by Friday 17 November 2017.

IP Australia will then consider the submissions, and undertake further consultation on an Exposure Draft of the legislation. The legislative amendments relating to these issues are proposed for inclusion in a Bill intended for introduction to Parliament in 2018.

IP Australia’s implementation of other measures covered by the Government’s response to the Productivity Commission report will be consulted on later in 2017, with a view to introducing this set of amendments in a Bill as soon as possible.

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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.