Acquisition by the Crown

26.41 Section 171 of the Patents Act provides for compulsory acquisition by the Commonwealth of an invention covered by a patent or patent application.^[67] The section does not authorise compulsory acquisition by a State or Territory. The Act does not stipulate any limitations on the circumstances in which the Commonwealth may acquire an invention, but the Commonwealth must compensate a patent holder on such terms as are agreed, or in the absence of such agreement, as are determined by a prescribed court.^[68] As with remuneration for Crown use, there is no guidance on the quantum of compensation for acquisition of an invention by the Commonwealth.

26.42 There are several situations in which the Commonwealth might wish to acquire a gene patent, such as in dealing with national emergencies or for defence purposes.^[69] It is also conceivable that the Australian Government might wish to acquire gene patents so as to provide open access to specific genetic materials or technologies. In 1997, the Australian delegation to the World Trade Organization stated that there are no instances of this provision having been used.^[70]