‘Raising the Bar’ Moves Another Step Closer to Law

Hot on the heels of a ‘second reading’ on Monday 19 March 2012, the Intellectual Property Amendment (Raising the Bar) Bill 2011 was read a third time, and agreed to (i.e. passed), by the Australian House of Representatives on 20 March 2012.

The Bill will now pass to the Governor General to receive the Royal Assent, i.e. to be signed into law.  While we have been unable to identify a timetable for this step, it seems likely that the Bill will become law within the coming days.

At the second reading, members of both sides of parliament, along with the Australian Greens’ Member for Melbourne, Adam Bandt, spoke generally in support of the Bill, although there continue to be reservations expressed by members of the opposition on issues such as the patenting of genes, and the impact of patents on the cost and availability of healthcare (neither of which are specifically addressed by the legislation).

As anticipated (see Major Australian Patent Reform Passes in Senate), despite the customary use of the ‘debate’ by each side of politics to score a few political points against the other, the Bill was largely uncontentious and it was ordered that the Bill be reported to the House without amendment.

THE DEBATE

Speakers at the second reading were (names link to Hansard of speeches):

1. Mark Dreyfuss, Labor Member for Isaacs and Parliamentary Secretary for Industry and Innovation and Parliamentary Secretary for Climate Change and Energy Efficiency;
2. Sophie Mirabella, Liberal Member for Indi;
3. Tony Zappia, Labor Member for Makin;
4. Jill Hall, Labor Member for Shortland and Government Whip;
5. Melissa Parke, Labor Member for Fremantle;
6. Adam Bandt, Australian Greens Member for Melbourne; and
7. Mark Dreyfuss again, concluding debate and ordering that the Bill be reported to the House without amendment.

Unsurprisingly, the Labor government members all spoke strongly in support of the Bill, lavishing the expected praise on those responsible for bringing it to fruition.

Mrs Mirabella (her preferred title) generally echoed the views of her Senate colleagues – particularly Senator Colbeck – in acknowledging a high degree of community and industry support for reforms in the Bill, noting that many of the people the opposition has consulted have indicated that they want to see the legislation passed.  However, they also made it clear that the opposition does not consider the Bill to address all areas of concern, and sees it more as a 'good start', rather than the final word on Australian IP law reform.

Mrs Mirabella also accused the government of a lack of consultation during the development of the legislation.  This is in some ways a fair criticism, considering that consultation was conducted primarily by IP Australia, and occasionally lacked the level of openness and transparency the public might have expected from a process driven by elected representatives (see, for example, Patent Reform–IP Australia’s Underexposed Exposure Draft – a situation that was only belated rectified: IP Australia's Exposure Draft Exposed!).

More surprising, perhaps, was the strong support of Greens Member Adam Brandt, who expressed no reservations in relation to the patenting of genetic technology, the impact of patents on research freedom, or the effect of patents on the cost and accessibility of healthcare.  This appears to have been in no small part due to the fact that a number of major research institutions are located within his Melbourne electorate – including the University of Melbourne and, as Mr Bandt put it:

…one of the world-leading health and medical research institutes [and] one of Australia's largest, Walter and Eliza Hall Institute. Professor Doug Hilton, the director of the institute, said that the raising of the bar bill would raise industry standards on patenting without jeopardising human health and the developments for new treatments for disease.

This leaves us wishing that more politicians would consult with experts in their electorates, rather than playing to the court of popularity and public opinion.  Although we are not holding our breath.

CONCLUSION

The date the Bill is signed into law will be the start of the 12-month period prior to commencement of the bulk of its provisions.  The implementation of a number of these reforms will rely upon the drafting of new and amended regulations by IP Australia.  Naturally, we will continue to follow this process.

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Before You Go…

Thank you for reading this article to the end – I hope you enjoyed it, and found it useful.  Almost every article I post here takes a few hours of my time to research and write, and I have never felt the need to ask for anything in return.

But now – for the first, and perhaps only, time – I am asking for a favour.  If you are a patent attorney, examiner, or other professional who is experienced in reading and interpreting patent claims, I could really use your help with my PhD research.  My project involves applying artificial intelligence to analyse patent claim scope systematically, with the goal of better understanding how different legal and regulatory choices influence the boundaries of patent protection.  But I need data to train my models, and that is where you can potentially assist me.  If every qualified person who reads this request could spare just a couple of hours over the next few weeks, I could gather all the data I need.

The task itself is straightforward and web-based – I am asking participants to compare pairs of patent claims and evaluate their relative scope, using an online application that I have designed and implemented over the past few months.  No special knowledge is required beyond the ability to read and understand patent claims in technical fields with which you are familiar.  You might even find it to be fun!

There is more information on the project website, at claimscopeproject.net.  In particular, you can read:

1. a detailed description of the study, its goals and benefits; and
2. instructions for the use of the online claim comparison application.

Thank you for considering this request!

Mark Summerfield

Tags: Australia, Law reform, Legislation, Patent law, Raising the Bar