Relatively unnoticed amid the National Broadband Network hubbub, Australia has moved to update its patent system. The Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 provides some key upsides for researchers – but at the same time, increases penalties for trademark infringement and product counterfeiting.
Researchers will welcome the amendments covering experimental use of products. The aim is to remove the risk that a researcher could infringe someone’s patent in the laboratory, merely because their research overlapped with someone else’s.
Probably the handiest example of this would be genetics research: many genetics operations are now covered by patents, which means someone looking for new genetic techniques would almost certainly infringe prior art. A researcher who is explicitly conducting follow-on research based on existing patents would be even more at risk, so the law is designed to protect the right to conduct new research, even when that research is based on existing patents.
In particular, the Act would make it clear that experimental use of information covered by a patent does not constitute “exploiting” the patented product or method.
The bill is also designed to lift the quality of patents by extending the information the patent office is allowed to take into account when assessing a patent, and broadens the definition of “prior art”.
The sting of the bill is in new scope given to courts to apply heavier penalties for counterfeit goods, “strict liability” for trademark offenses, and a new regime for seizure of goods by customs. ®