Universities Australia supports the overall direction of patent reform in streamlining processes and removing ambiguities from the current intellectual property system. In the legislative reforms proposed in the stage two consultation papers there are two areas of remaining concern to Universities Australia.
Research exemption to patent infringement
Universities Australia welcomes the proposal to amend Chapter 11 of the Patents Act to introduce a legislated exemption in relation to the use of patented technology in research. However, in common with other organisations in the research sector, Universities Australia is concerned that the narrow phrasing of the current drafting instructions will create uncertainty and may significantly constrain research activity.
As was stated in the initial round of consultations, Universities Australia considers that both public and private sector research institutions should have the ability to carry out research using patented technology, provided such research outcomes are not commercialised without a licence from the patentee. This is the current `de facto' understanding of Australia's IP arrangements, in the absence of significant case law.
There is a risk that in codifying an exemption for research in terms of `acts done predominantly for experimental purposes on a patented invention', the proposed legislation may invite legal challenge to university activity and hence, will potentially narrow the existing scope of permissible activity, or at a minimum require complicated and costly negotiation with patent holders before a range of research can be undertaken. This outcome would be fundamentally inconsistent with the Government's innovation agenda in its Powering Ideas white paper and damaging to the overall national interest, with a range of research showing economic returns of 25-40 per cent from publicly funded research.
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