27.1 This chapter discusses the compulsory licensing provisions of the Patents Act 1990 (Cth) (Patents Act). Compulsory licences are a mechanism that may facilitate access to patented genetic materials and technologies for use in research and the provision of healthcare.

27.2 A compulsory licence is an authorisation given by a national authority, without or against the consent of the patent holder, for the exploitation of a patented product or process.[1] Under the Patents Act, a prescribed court may grant a compulsory licence to work a patent if it is satisfied that the ‘reasonable requirements of the public’ with respect to the patented invention have not been satisfied; and the patent holder has not given a satisfactory reason for failing to exploit the patent.[2]

27.3 Few, if any, compulsory licences have been granted under Australian patent law. This chapter considers options for reform to facilitate the use of compulsory licensing, in appropriate circumstances, where gene patents have impeded access to healthcare, or the ability to conduct research related to human health.

[1] C Correa, Intellectual Property Rights and the Use of Compulsory Licenses: Options for Developing Countries (1999) South Centre, 3.

[2] Patents Act 1990 (Cth) s 133(2); Patents Regulations 1991 (Cth) r 12.1.