Giving Goliath the Slingshot

It seems that the Federal Court is not the only one to take issue with the current conduct of IP litigation in Australia.

The report of the Review of the National Innovation System “Venturous Australia – building strength in innovation” includes a section headed “The costs of enforcing IP rights”. The report’s solution to the perceived problem of such costs takes the form of Recommendation 7.4 that “Firms asserting or defending intellectual property should have a right to opt out of ‘appellate double jeopardy’.”

The proposal effectively provides that any party may elect not to appeal the first instance decision unless it funds the costs of both itself and the other parties in doing so. If any party makes such an election, all parties would be bound by it. How this proposal is intended to “level the playing field … between large and small firms” is unclear, given that such an election would effectively mean that only large firms (having sufficient funds) could appeal an unfavourable decision.