A person can apply to the Federal Court for a compulsory license to exploit a patented invention, under Part 2 of Chapter 12 of the Patents Act 1990 (‘Patents Act’). This application can be made on the grounds that demand for the invention is not being met in Australia on reasonable terms, or that the patentee is engaged in restrictive trade practices in connection with the patent.
Currently, an application can only be made after the expiry of the period of 3 years after the date of granting of the patent. This owes to subsection 133(1) of the Patents Act and sub-regulation 12.1 of the Patents Regulations 1991.
It is possible that the public interest might better be served by allowing an application for a compulsory licence to be made at some earlier time. To that end, the time frame for an application could be reviewed.
On hold February-2021
IP Australia welcomes stakeholder submission of evidence of a problem for further consideration.