The proposed amendments reflect the Australian Government's November 2011 response to three reports into gene patents and patentable subject matter, ie the Senate Community Affairs References Committee Gene Patents report, the Advisory Council on Intellectual Property (ACIP) Patentable Subject Matter report and the Australian Law Reform Commission's major Genes and Ingenuity: Gene Patenting and Human Health report, highlighted elsewhere in this blog.
The Government accepted recommendations to amend the Act to introduce
- an objects clause to provide clarity in the interpretation of the Act, and
- a patentability exclusion to prevent the commercialisation of inventions that would be wholly offensive to the Australian public.
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.ACIP's recommended Objects Clause highlights the purpose of the Act as
being to provide an environment that promotes Australia’s national interest and enhances the well-being of Australians by balancing the competing interests of patent rights holders, the users of technology, and Australian society as a whole.A second option is
the purpose of the patent system is to provide an environment that enhances the well-being of Australians by promoting innovation and the dissemination of technology and by balancing the competing interests of patent applicants and patent owners, the users of technology, and Australian society as a whole.The second area of amendment concerns "introduction of an explicit exclusion from patentability for inventions where society would have a moral objection to commercialisation of the invention". ACIP recommended against reference to ordre public (mistranslated by one student as public ordure), and suggested "exclusion for an invention the commercial exploitation which would be wholly offensive to the ordinary reasonable and fully informed member of the Australian public".
IP Australia comments that
Patent examiners will be expected to apply the patentability exclusion during examination of patent applications. However, as noted in the ACIP report, the consideration of ethical issues is not a routine exercise for patent examiners. Patent examiners may also not be equipped to consider whether the commercialisation of an invention would be offensive to the Australian public.
To address this problem ACIP recommended that the Patents Act be amended to provide the Commissioner with an explicit power to seek advice. This increases transparency and clarifies the Commissioner’s powers to seek assistance when applying the patentability exclusion. ACIP recommended: "that the Commissioner be given the power to seek non-binding advice, and have the discretion to decide the most appropriate way to do this".Written submissions are due by 27 September 2013.