Revisiting the Commonwealth Parliament's legislative authority for patent and patent-like schemes under the Constitution
While there may still in theory be some limits to the Constitution s 51(xviii) "patents for inventions" legislative power, the introduction of the concept of "other products of intellectual effort" in Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 [PDF] appears to have established an almost limitless scope for this power. In addition, the Constitution s 51(xxix) "external affairs" legislative power considerably expands the scope for possible patent and patent-like legislative schemes. This article reviews the existing precedents and addresses the remaining potential limits to the Commonwealth Parliament's legislative authority to implement patent and patent-like legislative schemes that promote pro-competitive innovations without unduly restricting desirable competition. The analysis concludes that any present constraints on the Commonwealth Parliament's legislative authority are unlikely to be for want of expansive constitutional powers.
Australian Intellectual Property Journal
Law not elsewhere classified