Another Missed Opportunity to Reform Compulsory Licensing and Crown Use in Australia

Abstract

This article considers the current status of the provisions in the Patents Act 1990 (Cth) relating to compulsory licensing and Crown use, and provides an analysis of the report resulting from the Productivity Commission's 2013 inquiry into the compulsory licensing of patents. The provisions relating to use without authorisation contain a number of deficiencies, some of which have been well documented. While the Productivity Commission was given the opportunity to rectify a number of these issues, its somewhat tentative approach to reform means that the prospect of significant clarification has been passed up. This article urges that the ramifications of implementing the proposed tests be carefully considered. Rather than promoting clarity, certainty and simplicity, the proposed amendments are likely to exacerbate the problems inherent in the current compulsory licensing provisions, and introduce a host of new issues that will require resolution.

Keywords: compulsory licences, Crown Use, Patents Act, Australia, use without authorisation