Jill Hall (Shortland, Australian Labor Party) Share this | Hansard source

Intellectual property rights are the gold of the future. Intellectual property rights are the hope of the future. Intellectual property rights are the power of the future. I think it is very important that we recognise that and enshrine that within legislation. I think it is very important that the government is highly mindful of the importance of intellectual property rights and, in doing so, places the importance on them that is needed and deserved.

When I hear that it has taken seven years to develop this legislation, I shudder, because that means it has taken seven years for the government to get its act together and legislate in an area that is about Australia’s future. It is about our position within the global market. The government, through being lazy and failing to act when it needed to act, has jeopardised the development of innovation within Australia. It has also affected our ability as a nation to compete. Protecting intellectual property rights is all about competition and innovation, and without proper protection you will find that companies do not make the investment that they need to. Intellectual property rights are of vital importance to Australia’s future.

The legislation we have before us today, the Intellectual Property Laws Amendment Bill 2006, broadens the springboarding regime for pharmaceutical patents, clarifies the rights of a prior user in the granting of patents, adds a competition test to the compulsory licensing of patents, allows for exemplary and punitive damages to be awarded in patent infringement actions, amends provisions relating to the revocation of trademarks and public access to trademark files and makes minor and technical amendments to the Patents Act 1990, the Trade Marks Act 1995, the Designs Act 2003 and the Plant Breeder’s Rights Act 1994.

At this stage, I would like to comment about plant breeders rights and the importance of ensuring that we get it right. People sometimes forget the importance of plant breeders rights, but the rights that companies like Aventis and Yates have had to particular intellectual properties in relation to plants have been very significant. They have had an impact in Third World countries and can be used to manipulate the market and the supply of certain foods and certain plants, which can have wider ramifications than might be envisaged. Whilst that does not come under this legislation, I think it is a really good example of the importance of intellectual property rights—how they can be used in an anticompetitive way to manipulate situations and in a way that is not for the general good.

I will come back to the legislation. This bill gives effect to some of the outstanding aspects of the government’s response to the Intellectual Property and Competition Review Committee report Review of the intellectual property legislation under the competition principles agreement and Review of the enforcement of industrial property rights. The bill is divided into 16 schedules and amends the Patents Act 1990, the Trade Marks Act 1995, the Designs Act 2003, the Plant Breeder’s Rights Act 1994 and the Olympic Insignia Protection Act 1987. The bill is quite technical in nature and amends a number of schedules.

Like previous speakers, I would like to turn to schedule 7, which deals with springboarding and patents. It allows for springboarding as an exception to patent infringement on any pharmaceutical patent—redefined to encompass both product and process patents—at any time for purposes solely in connection with gaining regulatory approval of a pharmaceutical product in Australia or another territory. ‘Springboarding’ refers to using the subject matter of a patent to collect data required to obtain regulatory approval of a generic version of the patent product, when the patent is selling first.

When we were debating the free trade agreement in this parliament, I expressed some concerns about how that would impinge on patents. I know that the US wanted a much more liberal system on patents on pharmaceuticals, and I always have concerns about patents and drug companies’ ability to manipulate those patents. We have heard that there is currently the ability for a five-year extension on patents, given that the patent runs for 20 years, and there is a lead-up time so that that five years extension is granted. My understanding is that the US would have liked a much longer period of extension of the patent.

Pharmaceutical companies have been known to make minor changes to drugs by just adding an extra component—the drug is basically the same—and then they can renew their patent. I think that we need to monitor the area of pharmaceuticals very closely in relation to patents. Given that the development of drugs does take a long period of time, patents are needed. It is once again a very good example of how investing in research and development leads to products that are very beneficial. The ownership of those intellectual property rights is essential for the development of those properties, but we have to be very careful that there is no exploitation within the process.

Further, on the issues surrounding springboarding: as I was mentioning, the limited provisions in the Patents Act 1990 allow generic manufacturers to collect information required to obtain regulatory approval for a patent during the patent period. The springboarding provision was intended to allow earlier regulatory approval for generic pharmaceuticals and faster market entry upon the patent expiry and to prevent originating drug companies from receiving further de facto extensions of patents, which, as you can gather from what I have already said, I believe is imperative.

Current springboarding provisions only allow springboarding on patents that have been extended after the extension has been granted. Patent term extensions of up to five years are available, as often new drugs, unlike other technologies, require that time and effort that I was talking about—the time to not only develop the drug but get it listed. The member for Banks this morning made a member’s statement about Herceptin, a drug that many of us have fought to have listed on the PBS, but it has taken time, and that time is reflected in the need for the extension of the patent. The points that I wanted to make related to pharmaceutical patents, and I needed to just place on record my words of caution on plant breeders rights.

In conclusion, I would like to emphasise the importance of intellectual property rights. Often they are the only asset and product of a company; that is what their existence is about. Their legal and financial extension is important in relation to the broader innovation debate. I think innovation is very important to us as a nation. It is very important for research and development. I would encourage the government to expand their research and development because I see that as the way of the future. There is little incentive under this government for new ideas and innovation.

This government have been very tardy in the development of this legislation. Seven years is far too long when it comes to something as important as intellectual property rights. For that I think they stand condemned. I also believe that they need to be a lot more active in encouraging companies in the area of research and development.

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