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PATENT ACT
The Amendments to the Patents Act deal with the areas of:
The Introduction of Exemplary Damages for Wilful Infringement
The proposal is to introduce the opportunity for the patentee to extract exemplary damages for flagrant infringement of patents. The court can take into account the conduct of the infringer, including any notice they may have had, in determining the level of damages awarded.
Modification of the Secret Prior Use Provisions
The previous secret prior use provisions are repealed and new provisions created which allow for a defence to infringement of independent secret use within Australia before the priority date of the invention. Additionally, the prior use right can be assigned from one party to another, but not licensed.
Modifications of the Springboading Provisions for Obtaining Regulatory Acceptance of Generic Pharmaceuticals
Under the new provisions, the ability to conduct springboarding activities relating to obtaining regulatory approval (both in Australia and overseas) of a pharmaceutical patent can occur at any time during the life of a patent - as opposed to the present situation in which activities to obtain regulatory approval are only allowed for patents that have been extended and for the period following the grant of the extension. Various importation activities relating to patented products, for regulatory approval purposes will also be allowed.
Expansion of the Compulsory Licensing Provisions
The application of the Australian Compulsory Licensing provisions have effectively been all but inoperative. The provisions have been redrafted with a view to easing the tests where the patentee has a “substantial market power” in a particular area. In such cases, where the patent can be shown to be “lessening competition”, it is likely the licence will be easier to obtain.
TRADE MARKS ACT
The new amendments broaden the power of the Registrar to revoke registrations where the registration should not have been accepted. Previously, only the Federal Court had the power to cancel a trade mark and the revisions pass this power to the Registrar, with the caveat that the owner has the right to be heard. The intent of the provisions is to provide a simpler methodology for revocation.
The Bill also provides the Registrar with statutory power to withhold from publication documents containing sensitive business information.
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