IP and the free trade agreement

The Australia-United States Free Trade Agreement (AUSFTA) introduced a number of legislative changes that affected intellectual property (IP).

Intellectual property (IP) is covered in chapter 17 of the AUSFTA. This is the longest chapter in the agreement, reflecting the importance of a strong and effective IP protection regime to both countries.

The topics covered include:

  • copyright
  • trade marks
  • domain names
  • designs
  • patents
  • regulation products
  • IP enforcement.

The agreement provides Australia with the flexibility to implement the agreement in a way that reflects Australia's interests and our legal and regulatory environment.

Patents

Only the patents legislation required amendment to ensure it is consistent with the agreement.

The grounds for revocation in the Patents Act were broader than the grounds on which a patent could be refused. Amendments extended the grounds on which the grant of a patent can be refused to include the invention not being useful, or being secretly used. This means that patents can continue to be revoked on these grounds.

Trade marks

The Trade Marks Office took on additional functions in relation to assisting the Australian Wine and Brandy Corporation (now Australian Grape and Wine Authority) to determine geographical indications for wine.

The amendments to the AWBC Act (now AGWA Act):

  • allow the owner of a trade mark to object to the determination of an Australian GI
  • introduced procedures to allow for a GI to be cancelled.

Agriculture and veterinary chemicals

The reforms boosted existing data protection provisions to stimulate innovation in agricultural chemistry in support of Australian agriculture and to increase the transparency in decision making.

Therapeutic goods

Applicants wanting to include goods (other than therapeutic devices and medical devices) in the Australian Register of Therapeutic Goods must do one of the following:

  • certify that they do not propose to market the therapeutic good in a way that would infringe a patent
  • certify that they propose to market therapeutic goods while a relevant patent is in force and have notified the patent owner of their application.

The requirement to notify a patent owner is only required if the generic company intends to market a product during the term of the patent. This does not give the pharmaceutical company that owns the patent any additional rights. 

Copyright

The major changes from the IP chapter of the AUSFTA were made to copyright legislation. They included:

  • new rights, both economic and moral for performers in sound recordings
  • extensions of the term of protection for most copyright material by 20 years
  • implementation of a scheme for limitation of remedies available against Carriage Service Providers for copyright infringement
  • wider criminal provisions for copyright infringement
  • broader protection for electronic rights management
  • protection against a wider range of unauthorised reproductions.
Last updated: 
22 March 2016