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Intellectual Property Laws Amendment Bill 2013
Introduced into the House of
Representatives on 30 May 2013
Portfolio: Industry, Innovation,
Climate Change, Science, Research and Tertiary Education
Summary of
committee view
1.1
The
committee seeks clarification as to whether a person whose patent is affected
by Crown use receives compensation and/or can seek review of this use, and
whether the Crown use provisions are consistent with the right to benefit from
one's scientific production.
1.2
The
committee seeks clarification as to whether the disclosure of personal
information to New Zealand officials is consistent with the right to privacy.
Overview
1.3
This
bill seeks to amend several areas of Australia's intellectual property
legislative framework. It is intended to introduce improvements across the
system to increase efficiency and effectiveness. In particular, the bill
- modifies
the Crown use provisions in the Patents Act 1990 to strengthen the
circumstances around when Crown use may apply;
-
implements
the Protocol amending the World Health Organization Agreement on
Trade-related aspects of Intellectual Property to allow Australian generic
medicine producers to manufacture and export patented pharmaceuticals to
countries experiencing a health crisis;
- provides
plant owners with quicker and cheaper alternatives to enforcing their rights in
federal courts;
- provides
for a single application and examination process for Trans-Tasman patents.
Compatibility
with human rights
1.4
The
bill is accompanied by a self-contained statement of compatibility that states
that the bill promotes the right to health as it enables the export of generic
versions of patented medicines to developing countries that are experiencing
serious public health issues. It notes that patent owners of affected
pharmaceutical product will be compensated.
Right to benefit from scientific production
1.5
Article
15 of the International Covenant on Economic, Social and Cultural Rights
provides for a right of everyone to 'benefit from the production of the moral
and material interests resulting from any scientific, literary or artistic
production of which he is the author'. The committee notes that Schedule 1 to
the bill seeks to amend the Patents Act 1990 to strengthen provisions
which permit the Commonwealth or a State (or their authorised person) to
exploit an invention described in a pending patent application or granted
patent without the need for authorisation by the owner – known as 'Crown use'.
The explanatory memorandum explains that this 'provides a safeguard to ensure
the patent system does not impede governments from acting in the public
interest'.
1.6
The
committee notes that the application of the right in article 15 does not
necessarily coincide with intellectual property rights under Australian law,
and that this right must be balanced with the right of everyone to enjoy the
benefits of scientific progress. The committee notes that enabling governments
to act in the public interest is an important and legitimate objective.
However, the committee notes that the statement of compatibility does not refer
to this right, and as such, the committee is unable to fully assess the human
compatibility of this provision. In particular, it is not clear to the
committee whether the person whose patented invention is used receives any
compensation for this use or is able to seek any review of the use.
1.7
The
committee intends to write to the Minister for Climate Change, Industry and
Innovation to seek clarification as to whether a person whose patent is
affected by Crown use receives compensation and/or can seek review of this use,
and whether the Crown use provisions are consistent with the right to benefit
from one's scientific production under article 15 of the ICESCR.
Right to privacy
1.8
Schedule
5 of the bill introduces a process for patents from Australia and New Zealand
to have a single application and examination process and will allow for a
single trans-Tasman patent attorney regime, including common qualifications for
registration. Item 16 of Schedule 5 amends section 183 of the Patents Act
1990 to allow for the disclosure of information (including personal
information) by the Designated Manager to the Register of Companies of New
Zealand or a New Zealand delegate. No information is given in the statement of
compatibility as to what safeguards are in place once personal information is
disclosed to officials in New Zealand.
1.9
The
committee intends to write to the Minister for Climate Change, Industry and
Innovation to seek clarification as to whether the disclosure of information to
New Zealand officials is consistent with the right to privacy under article 17
of the International Covenant on Civil and Political Rights.
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