IP reforms to improve protection, processes

Start-ups are set to receive better intellectual property protection under the Gillard Government’s plan to introduce a raft of IP reforms.

The main elements of the proposed reforms, detailed in a draft bill title ‘Raising the Bar’, include raising patent standards to align with major overseas trading partners and reducing the time to resolve patent and trademark applications.

Other key elements including strengthening anti-counterfeiting measures, and ensuring the patent system doesn’t restrict research.

According to Innovation Minister Senator Kim Carr, the Australian economy is dependent on a robust IP system to protect future ideas.

“These reforms will help ensure that Australia remains well-placed to conduct research, to do business and to work… They will also make it easier for our overseas partners to continue to bring new technology to Australia,” Senator Carr said in a statement.

IP processes in Australia are overseen by IP Australia, which heads up the administration of patents, trademarks, designs and plant breeders’ rights.

According to IP Australia, the reforms form part of a “suite of integrated projects” to make the IP system more efficient for innovators, businesses and the community.

In developing the reforms, IP Australia has undertaken significant consultation with the business community and other interest groups.

Within the draft bill, amendments to the various IP acts are divided into six categories:

Raising the quality of granted patents. The patent system must provide sufficient protection to reward innovation, but not so much protection as to block future or follow-on innovation.

Particular concerns have been raised that patents are granted for inventions that are not sufficiently inventive, and that the details of inventions are not sufficiently disclosed to the public.

Free access to patented inventions for research and regulatory activities. The patent system grants exclusive rights to commercialise and exploit inventions free of competition.

However, currently there is no statutory provision clarifying researchers’ freedom to conduct experiments and there is uncertainty about the scope of any existing common law protection, which leads to inefficiencies in research.

Reducing delays in resolution of patent and trademark applications. The patent and trademark systems need to strike a balance between giving sufficient time to get applications in order for grant or registration and minimising delays in giving certainty about whether a right will be granted, and what scope that right will have.  

Assisting the operations of the IP profession. Patent and trademark attorneys play a valuable role in assisting businesses and innovators to negotiate the IP system and protect their good ideas.  

Currently, there are anomalies between the ways in which patent and trademark attorneys can conduct their business and the ways in which other professionals can operate, particularly the legal profession.

Improving mechanisms for trademark and copyright enforcement. Effective enforcement of trademarks and copyright is a significant issue for rights owners, who have worked hard to establish their brand in the marketplace and do not want to see others take unfair advantage of their hard work.  

Stakeholders have raised concerns that the penalties for trademark counterfeiting are lower than those for copyright infringement and insufficient to deter infringers. Concerns have also been raised that the current system for confiscating imported counterfeit trademark and copyright goods is inadequate.

Simplifying the IP system. An ongoing challenge for the IP rights system is to balance the level of complexity necessary to ensure a robust system with the need for the system to be accessible and cost effective to a wide range of users.

IP Australia is seeking comments from the public on the draft legislation before April 4.