IP Australia has received a stakeholder submission about the repeal of Section 144 of the Patents Act 1990 (Patents Act). Section 144 prohibits certain conduct (e.g. tie-ins) because of its potential effect on competition.
This prohibition overlaps with similar prohibitions in the Competition and Consumer Act 2010 (CCA). However, with few exceptions (e.g. cartels), the CCA prohibitions only apply to conduct which has the purpose or likely effect of substantially lessening competition.
With subsection 51(3) of the CCA being recently repealed by the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 (Cth), the IP licensing exemption in the CCA has been removed, making it clear that tie-ins are now exposed to all the restrictive trade practices provisions of the CCA. Some stakeholders have therefore proposed that section 144 of the Patents Act should be repealed so as not to foreclose arrangements which have no anti-competitive effect or those which have a pro-competitive or beneficial effect.
IP Australia considers that further evidence of a problem is required to justify action at this time.
On hold 1-Apr-2020
IP Australia welcomes stakeholder submission of evidence of a problem for further consideration.