ALRC’s views

23.31 The ALRC has decided not to recommend the creation of a statutory licensing scheme under the Patents Act, due to the lack of a demonstrated need for such a scheme at this time, and in the light of other recommendations made in this Report to facilitate access to patented genetic inventions.

23.32 For example, the ALRC recommends a statutory exemption from patent infringement for acts done to study or experiment on the subject matter of a patented invention (Chapter 13). The ALRC also recommends that AusBiotech Ltd should consider whether additional industry initiatives are necessary or desirable to facilitate the licensing of patent rights over genetic materials and technologies (Chapter 22) and makes recommendations to clarify the Crown use and compulsory licensing provisions of the Patents Act (Chapters 26 and 27).

23.33 However, if evidence arises in the future of a need for such a scheme, the ALRC considers that a voluntary register of patented inventions would provide a useful model. This could be based on the United Kingdom’s ‘licence of right’ for patented inventions, or the Copyright Act’s Part VI regime for licensing schemes. If a model based on compulsory participation were considered in the future, the ALRC notes that care would need to be taken to ensure its compliance with Australia’s obligations under the TRIPS Agreement, and any other relevant international instruments to which Australia is a party.