Compulsory licensing has featured in Australian patent
legislation since 1903. Despite this, only a small number of cases
in Australia have considered the provisions.
In 2013, the Productivity Commission reviewed the workability
and accessibility of the provisions and recommended amendments to
clarify their operation. The legislation was amended to accommodate
these recommendations in February 2020.
In this article, we take a look at the updated provisions and
provide a brief assessment of the potential benefits.
The updated compulsory licensing provisions
Under the provisions, 1 a person may apply to the
Federal Court for an order requiring the patentee to grant a
licence of a patented invention, known as the 'original
invention'. Subject to the Court's discretion, such a
licence is available in the case of a patent granted for three or
more years where:
