24.1 The major concerns of competition policy in relation to intellectual property rights are the market power that may result from granting such rights, and the effect of the anti-competitive exercise of these rights.[1] The way in which an intellectual property rights holder exploits, or chooses not to exploit, its rights in genetic materials or technologies could have implications for competition, and may affect access to, and the pricing of, research tools and healthcare services.

24.2 This chapter discusses to what extent competition law can be used to address the anti-competitive exercise of intellectual property rights over genetic materials and technologies. Part IV of the Trade Practices Act 1974 (Cth) (TPA) proscribes a range of anti-competitive conduct, including the misuse of market power.

24.3 The Patents Act 1990 (Cth) (Patents Act) also addresses certain competition concerns relating to patented inventions.[2] For example, an individual or organisation could apply for a compulsory licence for a patented invention where the ‘reasonable requirements of the public’ with respect to the patented invention have not been satisfied.[3] In addition, this Report recommends that the Patents Act be amended to insert a competition-based test for the grant of a compulsory licence over a patented invention.[4]

[1] Intellectual Property and Competition Review Committee, Review of Intellectual Property Legislation under the Competition Principles Agreement (2000), 25.

[2] For example, through the criteria for patentability; the Crown use and compulsory licensing provisions; and provisions dealing with ‘tie-in’ conditions in licence arrangements and assignments.

[3]Patents Act 1990 (Cth) s 133.

[4] Rec 27–1.