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This report presents background information for an inquiry on the compulsory licensing provisions of the Patents Act 1990 (Cwlth).
Like most countries, Australia has legislated a system of compulsory licensing so that patent owners can be compelled to license their inventions to others in a limited range of circumstances.
- There are currently provisions in both the Competition and Consumer Act 2010 (Cwlth) and Patents Act 1990 (Cwlth) to address anticompetitive behaviour. To remove overlap and inconsistency, when a patent is used to engage in unlawful anticompetitive conduct, a compulsory licence should only be available under the Competition and Consumer Act.
- A public interest test should replace existing criteria based on the ‘reasonable requirements of the public’ in the Patents Act. This would provide an access regime when greater use of a patented invention would deliver a substantial net benefit to the community.