On 20 March 2012 the Intellectual Property Laws Amendment (Raising the Bar) Bill 2012 was passed by the House of Representatives. It is likely that the Bill will receive the Governor General’s assent and become law in the next few weeks.
The Raising the Bar Bill will make wide ranging changes to each of the Patents Act 1990, Designs Act 2003, Trade Marks Act 1995, Plant Breeders Rights Act 1994 and Copyright Act 1968. The majority of these changes will not come into effect until 12 months from the date on which the Bill becomes law, however the amendment to the Patents Act which introduces new exemptions from infringement in certain circumstances will take effect immediately after assent.
The first exemption, introduced by new section 119B, means that a patent will not be infringed by acts done solely for the purpose of obtaining regulatory approval necessary to exploit a product, method or process. The exemption only applies if the regulatory approval is required by law, but will apply whether the requirement is a law of Australia or another country or region. This exemption does not apply to pharmaceutical patents which are dealt with by existing section 119A.
The second exemption, introduced by new section 119C, means that a patent will not be infringed by acts done for experimental purposes relating to the subject matter of the invention. As defined in section 119C, experimental purposes include determining the properties of the invention or improving or modifying it as well as determining the scope or validity of the claims relating to the invention or whether they have been infringed.
Both of these new infringement exemptions come into force on the day after assent and will apply to acts done on or after that date irrespective of whether the relevant patent was granted before or after that time.
To find out more about the changes passed, please contact Adrian at adrian.crooks@pof.com.au