Patent Privileges and the National Competition Policy – Patent Scope and Allocation?

Abstract

This article suggests that the modern Australian policy for strengthened patent privileges has failed to adequately address the requirement to demonstrate that the benefits of the restriction on competition outweigh the costs and that the objectives of patent privileges can only be achieved by restricting competition. These requirements are the principle articulated in the Independent Committee of Inquiry into Competition Policy in Australia (Hilmer Committee) and its subsequent codification in the Competition Principles Agreement (CPA) as part of the National Competition Policy. The article concludes that applying the requirements of the CPA to patent privileges and assessing the broader debates about the appropriate patent scope and allocation is more likely to deliver a more rational patent policy that is more likely to be suited to the Australian community.