Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Clause 2, page 2 (after table item 3), insert:

(2) Page 22 (after line 12), after Schedule 2, insert:

Schedule 2A—Crown use

Patents Act 1990

1 Section 3 (list of definitions)

  Insert "services".

2 At the end of section 163

  Add:

(4) Without limiting subsection (1), the exploitation of an invention by or for the Commonwealth is taken to be for the services of the Commonwealth if the following process is followed:

  (a) the Minister considers that the Commonwealth has tried for a reasonable period, but without success, to obtain from the nominated person or patentee, an authorisation to work the invention on reasonable terms;

  (b) the Minister approves the proposed exploitation by instrument;

(c) at least 14 days before the exploitation starts, the Minister gives the nominated person or patentee:

     (i) a copy of the instrument of approval; and

     (ii) a copy of the statement of reasons for approving the exploitation.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the content of a statement of reasons.

(5) Without limiting subsection (1), the exploitation of an invention by or for a State is taken to be for the services of the State if the following process is followed:

  (a) the Attorney-General of the State considers that the State has tried for a reasonable period, but without success, to obtain from the nominated person or patentee, an authorisation to work the invention on reasonable terms;

  (b) the Attorney-General approves the proposed exploitation by instrument;

(c) at least 14 days before the exploitation starts, the Attorney-General gives the nominated person or patentee:

     (i) a copy of the instrument of approval; and

     (ii) a copy of the statement of reasons for approving the exploitation.

Note: Section 25D of the Acts Interpretation Act 1901 sets out rules about the content of a statement of reasons.

(6) In this section:

  services:

  (a) in relation to the exploitation of an invention by or for the Commonwealth, includes:

     (i) a service that is primarily provided or funded by the Commonwealth; or

     (ii) a service that is primarily provided or funded by the Commonwealth and one or more of the States; or

     (iii) research that is primarily funded by the Commonwealth; or

     (iv) research that is primarily funded by the Commonwealth and one or more of the States; and

(b) in relation to the exploitation of an invention by or for a State, includes:

     (i) a service that is primarily provided or funded by the State; or

     (ii) a service that is primarily provided or funded by the State and one or more of the other States or the Commonwealth; or

     (iii) research that is primarily funded by the State; or

     (iv) research that is primarily funded by the State and one or more of the other States or the Commonwealth.

3 Schedule 1

  Insert:

  services has the meaning given by subsection 163(6).

4 Application

  The amendments made by this Schedule apply in relation to the exploitation of an invention by the Commonwealth or a State that starts, or is proposed to start, on or after the day this item commences.

5 Transitional—negotiations

  If, before the commencement of this Schedule, the Commonwealth or a State has tried for a period, but without success, to obtain from a nominated person or patentee, an authorisation to work an invention on reasonable terms:

  (a) in the case of the Commonwealth—the Minister must take that period into account in considering whether paragraph 163(4)(a) of the amended Act is satisfied in relation to the exploration of the invention; and

  (b) in the case of the State—the Attorney-General of the State must take that period into account in considering whether paragraph 163(5)(a) of the amended Act is satisfied in relation to the exploration of the invention.

In my speech on the second reading I canvassed the reasons for these amendments, so I will not go into them again in detail.

The point is simply this. These amendments are not about whether or not the human genome or parts of the genome are patentable. These amendments arise out of extensive Senate and other inquiries into this legislation and other attempts to amend this legislation. It addresses both the issue that patients have raised about the difficulty of accessing crown-use provisions and getting ministers to make decisions, and the issue that companies have raised about how they sometimes feel that the capacity for crown-use provisions to be exercised can work against them commercially. Without altering the crown-use provisions in the act, the amendments set out a process whereby people, such as the patients who commence proceedings that are now potentially ending up in the High Court, as the minister referred to, as well as anyone else, in the future now have a known process for approaching the minister and the minister has a process for determining whether or not to exercise the crown-use provisions, because, as has been heard, complaints have been raised from both sides.

Because those provisions are so infrequently used, neither side feels that they are being properly exercised or that their concerns are being properly addressed. So these are sensible amendments that also attempt to ensure that within the definition of services there is some clarity about the definition of services, and that it includes research that is primarily funded by the Commonwealth, so that the Commonwealth is in a position to ensure that there is no limit on research that is conducted in this country and that innovation is encouraged.

For those reasons and the reasons I have expanded upon in my second reading contribution I commend these amendments to the House.

Bob Baldwin (Paterson, Liberal Party, Parliamentary Secretary to the Minister for the Environment) Share this | Link to this | Hansard source

We will not accept these amendments on this basis. There is no consultation. The reason they were rejected in the original bill was a lack of consultation with industry in particular. If you want a bill like this to succeed, the member for Melbourne should perhaps detail to the House how much industry consultation he has actually performed before moving this amendment.

I think it is incumbent on people when they move amendments that they do it on a basis of fact and engagement with stakeholders so that there is some substantial effort and understanding of what they are trying to achieve. I am not saying that crown-use provisions are bad. But as was outlined when the bill was originally introduced by the former government, there had not been enough stakeholder engagement. There was a negative reaction from industry that needed to be overcome. Through the processes of time, we will look at crown-use provisions into the future, but not just now.

This is rushed. The first I heard about an intention to move these amendments was here tonight when I walked into the chamber. I would have thought that if you wanted to get an amendment like this up, rather than do a bit of grandstanding, one might have come and seen the government and put forward the case, the need and the reason. So we will be rejecting these amendments.

Question negatived.

Bill agreed to.