Commonwealth Consolidated Acts Commonwealth Consolidated ActsThis Act applies, on and after the commencing day, in relation to a person who was, immediately before that day, a registered patent attorney under the 1952 Act as if the person had been registered as a patent attorney under this Act.
This Chapter provides for court orders requiring the grant of compulsory licences in respect of patented inventions.
Special provision is made for compulsory licences to exploit patented pharmaceutical inventions. This is to enable the manufacture of a pharmaceutical product in Australia for export to an eligible importing country, to address public health problems in that country.
This Chapter also provides generally for the surrender of patents, and for court orders revoking patents.
The Federal Court may make an order under this Part requiring the grant of a compulsory licence to exploit a patented invention.
The court may order a compulsory licence to be granted if certain conditions are met, including that demand in Australia for the invention is not being met on reasonable terms, authorisation to exploit the invention is essential to meet that demand and it is in the public interest to grant the licence. If the person seeking the compulsory licence is the patentee of another invention and is seeking the licence to exploit that other invention, the court must also be satisfied that the other invention involves an important technical advance of considerable economic significance on the original invention.
The court may also order a compulsory licence to be granted if the patentee has engaged in restrictive trade practices in connection with the patent under the Competition and Consumer Act 2010 or under an application law (within the meaning of that Act).
The court may order a patent to be revoked after an order for a compulsory licence has been made (on the same grounds that apply to an order for a compulsory licence).
The patentee must be paid an agreed amount of remuneration, or an amount of remuneration determined by the court.
The Federal Court may make an order under this Part requiring the grant of a compulsory licence to exploit a patented pharmaceutical invention for manufacture and export to an eligible importing country.
The court may order a compulsory licence to be granted if the proposed use of the pharmaceutical product is to address a public health issue in the eligible importing country:
(a) in a national emergency (or other extremely urgent circumstances); or
(b) by the public non - commercial use of the product.
The order may be amended or revoked by another order of the court.
The patentee must be paid an agreed amount of remuneration, or an amount of remuneration determined by the court.
A patentee may offer to surrender a patent by giving the Commissioner written notice.
The Commissioner may accept the offer of surrender, and revoke the patent, after hearing all interested parties. If court proceedings are pending in relation to the patent, leave of the court, or the consent of the parties, is required. The Commissioner must not accept the offer if a compulsory licence ordered under Part 2 is in force in relation to the patent.
In addition, a court may revoke a patent on the following grounds:
(a) the patentee is not entitled to the patent;
(b) the invention is not a patentable invention;
(c) the patent was (broadly speaking) improperly obtained;
(d) the patent was (broadly speaking) obtained on the basis of a non - compliant specification.
This Part deals with the parties to proceedings under this Chapter (other than proceedings under Part 3).
This Part also enables the Commissioner to appear and be heard in all
proceedings under this Chapter.