The operation of the compulsory licensing provisions of the Patents Act 1990 need to take into consideration Australia's international treaty obligations. Section 136 of the Patents Act 1990 requires that a court must not make a compulsory licence order that is "inconsistent with a treaty between the Commonwealth and a foreign country". In its 2013 review of compulsory licensing, the Productivity Commission (PC) considered s 136 problematic, because it reduces the transparency and scrutiny of the legislative process, and can also be a source of uncertainty for the parties. The PC favoured repealing s 136 and incorporating any current and future treaty obligations directly into the Patents Act or its subordinate legislation. The proposed amendment seeks to improve transparency and certainty for the parties.
Policy Development 04-Sept-2017
High priority for further consideration due to public interest in ensuring compulsory licensing provisions are clear and accessible, as highlighted in the Productivity Commission's report. Public consultation is underway.