Submission on the Productivity Commission’s Draft Report into The Compulsory Licensing of Patents

    7 February 2013

    CropLife maintains its support for a strengthening of the status quo and agrees with the findings of the Productivity Commission that the existing provisions of the Patents Act 1990 provide an efficacious remedy where a patentee is abusing their exclusive rights to exploit a patent, or where the reasonable requirements of the public are not being met.

    CropLife considers there is no basis to justify transforming a remedial mechanism into a tool of general market regulation.  The current incentive for the market to maximise profit and the ability to profit from licensing dictates against systemic anti-competitive conduct.

    In general, CropLife supports those recommendations made by the Productivity Commission that recommend strengthening the requirements for the granting of compulsory licences.  CropLife supports the recognition by the Commission that concerns about compulsory licensing stem from an isolated case involving patenting of genes for medical testing and the emphasis that this is not representative of the behaviour of most gene patent holders.

    CropLife comments the Productivity Commission for recommending explicit consideration of the right of the patentee to obtain a return on investment as part of a revised test for the granting of a compulsory licence.

    CropLife has strong concerns that the repeal of s. 51(3) of the Competition and Consumer Act 2010 will result in business uncertainty and potentially a reduction in licensing activity in the plant biotechnology sector.