On 30 May 2013, the Minister for Climate Change, Industry and Innovation Greg Combet introduced the Intellectual Property Laws Amendment Bill 2013, which includes amendments to the Crown Use provisions. Crown use provisions allow governments to access patented inventions under specific circumstances. A recent Productivity Commission Inquiry into Compulsory Licensing of Patents found that there was significant uncertainty around the use of Crown use provisions. It was found that the scope of the types of entities that can actually make use of the Crown use provisions is unclear, particularly in the healthcare field, and there is a lack of transparency and accountability associated with the Crown use provisions. The proposed amendments:
- clarify the scope of Crown use;
- require the Crown to attempt to negotiate use of the patented invention prior to invoking Crown use;
- require a statement of reasons to be provided before Crown use occurs;
- require ministerial approval for Crown use; and
- change remuneration arrangements for Crown use.
The proposed amendments were found to benefit patent owners in terms of the ability to negotiate a reasonable outcome in relation to their interests. Government was also found to benefit from greater clarity around which entities are able to invoke Crown use. The main costs are associated with the requirement to negotiate with patent holders prior to Crown use which could potentially lead to unacceptable delays in the availability of the patented technology. However, it was found that this could be mitigated by legislative provisions which clarify expectations and which limit the prospect of vexatious legal action. In addition, in the case of emergencies, the requirement for negotiation is waived. A Regulation Impact Statement was prepared by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education and assessed as adequate by the Office of Best Practice Regulation.
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