Giving Researchers Freedom
Researchers in Australia
Australian researchers are generally aware that they have some degree of freedom to do their research without worrying about being sued for patent infringement.
However a broad survey of 'Group of Eight' universities between 2007 and 2009 revealed confusion about the scope of any research exemption, and concerns about how this uncertainty influences scientific inquiry (Jensen and Webster 2010).
Confusion and uncertainty about the extent to which researchers are protected from infringement can stifle research in critical areas due to the threat of being sued for infringement. Uncertainty also leads to researchers wasting time, effort and money on advice when they are concerned about possible patent infringement.
To solve this problem, the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 clarifies the experimental use exemption.
Under 'Raising the Bar', researchers are free to;
- determine the properties of an invention,
- improve or modify the invention,
- investigate the validity of a patent or of a claim relating to the invention, and
- examine whether a patent would be, or has been, infringed.
They are free to do these things regardless of whether they are doing them under contract or with funding from a commercial entity or whether they are doing them with some commercial end point in mind.
They cannot market a patented invention or manufacture a patented invention for sale without the patent owner's permission. But all the research necessary to come up with a good idea, and confirm that it works, can be done without anybody's permission. The Bill sets researchers free, to give us the new ideas that we need to be an innovative nation.
Walter and Eliza Hall Institute of Medical Research
What does this mean for researchers? For the Walter and Eliza Hall Institute of Medical Research (WEHI) it provides clarity and confidence to continue with their ground breaking research.
WEHI has well-established practices for IP disclosure and development. In 2010/11 alone WEHI was awarded patents in six areas of research, and maintains rigorous procedures for the annual audit of laboratory notebooks.
'What Raising the Bar means for us is clarity,' says Dr Julian Clark, Head of Business Development at WEHI, 'We know where we stand and we can keep doing what we do best; research'.
The institute invests millions of dollars each year in research on cancer, diabetes, arthritis, and infectious diseases such as malaria and hepatitis. With modest planning and oversight, the fear of patent infringement should never be an obstacle to WEHI's valuable research. Let's trust they keep up the good work.
Reference
Jensen P. H. and Webster E. 2010, 'Do patents alter the direction of scientific inquiry? Evidence from a survey of academic scientists', Melbourne Institute of Applied Economic and Social Research Working Paper no. 18/10, University of Melbourne.
Last Updated: 15/9/2012
