11 February 2011

Patent Reform–IP Australia’s Underexposed Exposure Draft

Now, here is something interesting… on the website of the Department of the Prime Minister and Cabinet you can obtain a document listing all of the legislation proposed for introduction during the Autumn 2011 sessions of Parliament.

On page eight you will find the following intriguing entry:
Intellectual Property Laws Amendment Bill
  1. raise patent standards and increase certainty in the validity of granted patents
  2. give researchers the freedom to innovate without the threat of litigation
  3. speed up the processes for determining patent and trade mark applications
  4. improve the operations of the intellectual property profession
  5. improve mechanisms for trade mark and copyright enforcement in Australia
  6. modernise aspects of Australia’s intellectual property system
Reason for legislation: to implement a range of intellectual property reforms, including raising Australian patent thresholds to international standards
In our recent guest article for the IPWatchdog blog, we listed IP Australia’s patent reform agenda at number five in our ‘top eight’ IP issues in Australia and New Zealand, noting that an Amendments Bill is expected to emerge in 2011.  But we have seen nothing as yet, and Autumn is nearly upon us.

So what, we wonder, is the story here?
‘Exposure Draft’ Quietly Released
We hear – ‘on the grapevine’ as it were – that IP Australia has, in fact, released an ‘exposure draft’ of the proposed Bill to a very select few ‘interested parties’.  We will not name our sources, nor any of the organisations and institutions that we believe to be in possession of the exposure draft, because we understand that they are all bound by confidentiality.  We emphasise that we have not, ourselves, seen a copy of the draft Bill, and we are unaware of any breaches of that confidentiality having occurred.
Concerns
But we find all of this to be most odd and, frankly, a little concerning.  As a practising member of the IP profession in Australia, we consider ourselves to be an ‘interested party’ in this matter.  We believe that we, and our clients, are entitled to know how it is proposed to raise standards and increase certainty in relation to patents, how our academic clients will have their freedom to innovate enhanced, exactly how the processes for determining applications will be accelerated (that is us and our clients that are being ‘sped up’, of course), how the operations of our profession will be improved, how enforcement mechanisms will be improved, and how our country’s IP system will be modernised.

We also think that taxpayers and users (‘customers’) of the system are entitled to be kept informed about exactly how IP Australia is spending our money on its reform agenda.
Past Consultation
We expect that IP Australia’s answer to this criticism would be that they have engaged in extensive consultation already, and issued a number of papers making their intentions perfectly clear.  That is all true, and perfectly fine.  But there should therefore be no surprises in the draft Bill, and no reason why we should not be entitled to see it.
Culture of Secrecy?
Our overriding concern is that this seems to be another example of the creeping tendency of our elected representatives, and their supporting bureaucracies of ‘public servants’, to view secrecy almost as a default position.  The current WikiLeaks controversy is a case in point.  While there is certainly some embarrassing information receiving attention in the media, there is not too much in the ‘cablegate’ documents that is terribly surprising.  If you actually visit WikiLeaks (currently at wikileaks.ch, but this may change) and read a few of the leaked cables at random, you will find that most of them are dull and harmless reports of meetings, discussions and opinions that appear to have been ‘classified’ merely because they can be.

By the same token, there should be nothing in the draft Intellectual Property Laws Amendment Bill that would prevent an open and transparent approach to the reform process.  So why all the secrecy?
‘Getting the Balance Right’?
We can understand that IP Australia may be concerned about being inundated with comments, and is initially seeking feedback only from select stakeholders.  But surely it can restrict sources of input without denying the remainder of the interested community an opportunity to review the exposure draft?  Even if we cannot comment individually, our views may benefit those professional organisations that have been granted the privilege of providing feedback.

For now, we shall dub the mystery Bill the ‘underexposure draft’, and we would encourage IP Australia to release it publicly so that the taxpayers who are funding it, and the IP professionals, IP proprietors, applicants, and other directly-affected stakeholders, may at least observe the process.

A major prong of IP Australia’s reform agenda has been covered by the phrase ‘getting the balance right’.  In a democracy, we expect nothing less.

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