AusBiotech comments on IP and MRFF consultations


AusBiotech has submitted comment on behalf of members to two consultations: IP Australia’s consultation on the ‘Intellectual Property Laws Amendment Bill (Productivity Commission Response Part 2 and Other Measures) 2018’; and to inform the second Australian Medical Research and Innovation Priorities 2018 – 2020 for the Medical Research Future Fund (MRFF).

Intellectual Property Laws Amendment Bill 2018

IP Australia invited comment on elements of the proposed object clause, the inventive step change and compulsory licencing.

AusBiotech said in its submission, developed by the IP Advisory Panel, that it remains of the view that amending the definition of inventive step is not required. However, if such changes are pursued, AusBiotech has no real issue with the proposed change of language, other than to note that the accompanying materials should make it clear that the ‘comparison’ is not an element-by-element comparison of components of the relevant claim.

In terms of the objects clause, AusBiotech has concerns regarding the reference to “technological” innovation and the capacity to restrict or narrow the definition or that the definition could change over time – and suggests removing it.

In reference to compulsory licensing, AusBiotech considers that the chapeau to paragraph 133(5)(b) and the enumeration of specific factors limits the full range of considerations that should be considered when determining the amount of remuneration. AusBiotech suggests that the chapeau could be amended to state, “Such amount as is determined to be just and reasonable, having regard to all relevant facts and circumstances including…” 

Secondly, AusBiotech considers that factors (i), (iii) and (iv) are vague and/or unclear, and do little to reduce ambiguity of what the Federal Court must have regard to when determining the amount of remuneration to be paid to the patentee.  AusBiotech suggests that further consideration be given to these factors to provide patentees and licensees with greater certainty.

It appears to be anomalous and inequitable to allow the compulsory licence for an original invention to be revoked but not a cross licence under paragraph 133(3B) and making the changes applicable prospectively seems appropriate, on the basis these are primarily clarifications, and not reductions, in patentee rights. 

Australian Medical Research and Innovation Priorities 2018 – 2020

AusBiotech provided its submission in response to the MRFF consultation to inform the second Australian Medical Research and Innovation Priorities 2018 - 2020.

On behalf of its membership, AusBiotech congratulated the Government on creating and prosecuting the MRFF and, in particular, the MRFF Strategic Platforms that provided the framework for the inaugural set of MRFF investment priorities for 2016-2018 and included “commercialisation” as one of its six key planks. 

The resulting two-year commitment on the $250 million Biomedical Translation Fund (BTF) that with matching funds from private investors when fully invested will see $500 million invested in the biotech sector.

AusBiotech said it fully supports the inclusion of commercialisation as a key priority and would urge the AMRAD to retain its focus in this area, with the view that it will make a material difference to Australians’ future and will be seen over time as a foundation strategy for improved commercialisation of quality discovery in Australia.

While the BTF will provide benefit for some time to come, there is an opportunity to provide further and on-going support designed to improve the national success rate for commercialising good biomedical science.

In order to optimise this policy objective, we believe that a continued portion of the fund should be directed to Australian companies commercialising discoveries in the life science space.

AusBiotech would recommend that a key priority of the fund remain in commercialisation and biomedical translation, and would welcome further investment in this area.

These and all AusBiotech submissions can be found online.