Draft guidelines released on repeal of IP restrictive trade practice exemption


The Australian Competition and Consumer Commission (ACCC) has released draft guidelines on the repeal of the Intellectual Property (IP) exemption (subsection 51(3) of the Competition and Consumer Act 2010) for consultation.

This clause had provided businesses with an exemption for certain types of anti-competitive conduct relating to IP licences, assignments and similar arrangements.

As previously flagged by AusBiotech, the ACCC announced the repeal in March 2019. A six-month grace period was provided, meaning the new legislation enters into effect on 13 September 2019. Businesses have had this time to review their IP arrangements to ensure those arrangements comply with the new laws.

The draft guidelines aim to assist IP rights holders and legal and business advisers in transitioning to the revised arrangements. Examples of conduct that would or would not be considered anti-competitive are included.

The ACCC is seeking comments ahead of finalising the guidelines before the repeal comes into effect. Submissions are due by 19 July 2019 via the ACCC consultation hub.

IP is critical to the development of life sciences businesses and AusBiotech encourages its members to consider whether your organisation should consider providing a submission.

Biotech businesses often have more complex licensing agreements where IP rights are licensed or assigned conditionally, so members are likely to need to pay particular attention to the repeal’s effects on their current and future agreements.

Please contact us if you would like to discuss this consultation further.