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The article acknowledges the position of Intellectual property in Australia, what the legislation of the nation includes, the amendment made in IP laws of Australia by the IP Laws Amendment Act 2015 and critical analysis of the same.
When we say IP or Intellectual Property, it is recognized as such intangible property that has originated from the intellect of humans. In the vast era of technological and economic advancement, there is an origination of a need across the world for protecting intellectual property in the origin nation and in other countries.
POSITION OF IP IN AUSTRALIA
IP and some other intangible properties can be those which are related to the performance of the business involving patents, trade secrets and trademarks. The IP laws of Australia is formulated in such a way that its ultimate motive is to encourage the innovation and protection of existing businesses that are developing some original IP to have a competitive advantage.
The IP laws of Australia provides protection of IP such as Patents, Copyright, Designs, Trademarks, Domain name and Plant Breeder’s Rights. The regulating authority of IP legislation in Australia is IP Australia, an agency that administers all the IP rights and legislation.
Under the IP legislation of Australia, the following are provisions that relate to the legislative basis of the IP’s:
- The provision administers the patent, designs, plant breeder’s right, trademarks as well as the authority and function of the Patent Commissioner & Trademark’s Registrar.
- The provisions forming and maintaining the register of the Patents, Plant Breeder’s, Trademarks and designs in their respective offices.
- Institution and processing the applications made for the grant of the standard and innovation of the patents, giving plant breeder’s authority and registration of trademarks and designs.
- Charge of the fees.
- Publication in the main journals of the Patents, Designs, Trademarks and Plant Varieties.
- Providing the means and procedure to initiate the infringement proceedings for enforcing and protecting the rights in the granted patent, registered design, registered trademarks and registered plant variety.
- Providing for the registration of the trademark’s attorney and giving him his rights and authorities.
- For recognizing the approved individual to supervise and verify the plant breeder’s rights and applications for the same.
- For reviewing the decision given by the Patents Commissioner and the Registrars.
- The jurisdiction of the Federal Courts to hear an appeal against the decision made by the Registrars and the Commissioner.
Recently, Australia had made an amendment in their IP laws in the year 2015 specifically in the Patents, Designs, Plant Breeder’s and Trademarks to simplify the various elements in the Acts and increase its effectiveness.
INTELLECTUAL PROPERTY LAWS AMENDMENT ACT, 2015
Major Issues Resolved
The IP Laws Amendment Act 2015 got passed in February 2015 by the senate. The main issues discussed in the Amendment Act, 2015 are:
- There shall be the implementation of those Protocols that were amending the WTO Agreement in trade-related phases of IP i.e. TRIPS Protocol with a view that it is in benefit with the pharmaceutical industry of Australia. By the implementation of the protocols, the local drug manufacturers can now apply in the Federal Court of Australia for getting the compulsory license that can permit the manufacturers to manufacture patented drugs and then export those drugs in the needful country facing a severe health crisis. The memorandum of the Intellectual Property Laws Amendment Act, 2015 mainly focused on the benefits made by Australia through their latest advanced technology.
Many of the least developed and under-developing countries face difficulty in manufacturing and gaining access to the patented pharmaceutical drugs leading to their incapability to effectively resolve the health crisis in their territory.
The main motive of this IP Laws Amendment Act 2015 was to make an amendment in their Patents Act by including the provision in the act for giving permission to the Australian drug’s manufacturers to supply the patented drugs in the needful country. Further, the patent holder will be provided with compensation for the same.
- The Act extended the jurisdiction of the Australian Federal Courts to accept the matter related to Plant’s Breeder’s Rights. The main purpose behind it was to enable those persons having plant breeder’s rights like farmers so that they can avail more simplified and cost-effective methods to resolve their disputes and protect their rights.
- The Act facilitated a regime of having a single patent attorney, patent application and process of examination to support the wide single economic market agenda in Australia and New Zealand. This change basically led to the more cost-effective patent application and their registration in these countries.
- The amendments made in the Patent, Designs and Trademarks Act repealed the redundant provisions of document retention on the aforesaid ground that the matters are resolved under The Archives Act, 1993
- To make some small technical changes in the Patents Act to reform the oversight of drafting of the IP laws Amendment Act, 2012
Overview of the Act
The below-mentioned table highlights the main provisions of the IP Laws Amendment Act 2015
|Schedule I||This schedule enabled the Australian drug’s manufacturers to manufacture as well as export the patented drugs in those countries that are facing serious health crisis through the compulsory license as granted by the Australian Federal Court. The above-mentioned changes implemented such protocols that were amending the WTO and TRIPS agreement.|
|Schedule II||This schedule made some small changes in the patents act to make sure that the TRIPS agreement is sincerely considered instead of the interim waiver.|
|Schedule III||This Schedule widened the Australian Federal Court’s Jurisdiction for accepting the disputes related to the Plant Breeder’s Rights.|
|Schedule IV||This Schedule made it possible for having a single patent attorney, application and examination process in Australia and New Zealand to fulfil the wide economic market motive.|
|Schedule V||This schedule removed the redundant retention of the documents that are already been dealt under The Archive Act, 1983.|
Australia is one of the most developed countries in the world having a huge income economy. With this, it can be concluded that the contribution of Australia to world economic development would be high. There would be a huge generation of IP in the country and that is protected thereof with advanced legislature procedure. Australia became a member of WTO in 1995.
Earlier, the IP laws of Australia did not grant the patent in drugs and their manufacturing. But Australia being a developed nation had the capability to serve the rest of the developing countries at the time of health crisis like in the current situation of COVID-19. Therefore, to have a safe export of their produced drugs, Australia revised its IP legislation and made it legal to patent the drugs and export them to other countries. It not only invokes economic upliftment of Australia but also helps the needful countries at the time of uncertain crisis.
The IP Laws Amendment Act 2015 enables the country Australia to abide by the obligations under TRIPS Agreement for having easy access to the crucial patented drugs which can help the developing countries at the time of the health crisis. Before this amendment, the power of the Federal Court was limited for ordering the patent holder to grant the license.
The limitation was up to the extent of such a situation where the Federal Court gets satisfied with the fact that the patentee failed to exploit the patent; the main requirements of the Australian citizens are not met and the patent applicant had tried for a long period for the license to get the authorization on a legal term. The main agenda of the Amendment Act was to reduce the administrative & regulatory costs and delays the businesses in Australia to resolve their Intellectual Property related disputes.
It is finally concluded that the main purpose of IP Laws Amendment Act 2015 was to give a more simple and accurate IP structure in Australia. This shows that Australia plays a very good role in its international obligations and tries to meet its commitment in the Protocol amending the WTO’s TRIPS agreement.
- Australian Intellectual Property Laws. https://www.austrade.gov.au.
- Intellectual Property Laws Amendment Act 2015-WIPO. https://www.wipo.int.
- IP Laws Amendment Act, 2015- IP Australia. https://ipaustralia.gov.au.