Australia steps slowly closer to patent reform

The issue of patent reforms was highlighted in last year's innovation review, to which the Government has not yet officially responded.

According to IP law expert Kimberlee Weatherall, patent reform so far has taken a backseat while the government focuses on enforcement issues to facilitate trade agreements with Korea, Chile and the U.S.

With the U.S. and Europe considering patent reforms of their own, Australia may decide to wait and see their solutions before making significant reforms.

"I kind of get the sense that in Australia, they're holding off a little on making significant reforms," said Weatherall, a senior lecturer in the University of Queensland's School of Law.

"With the larger patent jurisdictions talking about areas of reform, I think Australia is kind of sitting back a little to see what happens in that context," she told iTnews.

Indeed, international relations are a focal point for Government agency IP Australia's forthcoming consultation paper, entitled "Getting the Balance Right -Toward a Stronger and More Efficient IP Rights System."

According to IP Australia's Director of Marketing and Customer Engagement, Peter Willimott: "The proposed reforms are directed at raising patentability standards to better align Australian standards with standards in countries who are our major trading partners."

Australia's patent system was criticised in the Cutler Review of Innovation late last year for impeding, rather than stimulating, innovation.

The review, also known as Venturous Australia, suggested that patent law be reviewed to ensure strict qualification requirements.

Meanwhile, U.S. economists have suggested that patent and copyright laws should be abolished altogether.

"This issue is similar throughout the world: patent and copyright laws now discourage rather than encourage innovation and creation," said David K. Levine, who is a Professor of Economics at the Washington University in St. Louis.

"Rather than providing a reward for people with new ideas, they are used as a business strategy by failing firms to prevent competition from people with new ideas," he told iTnews.

Levine and his colleague Michele Boldrin have published their views in a new book, Against Intellectual Monopoly, in which they argue that patents drive up the cost of creation and slow down the rate of diffusion of new ideas.

Innovators no longer need to be "protected from competition" to be rewarded for their work, Levine said, describing the Open Source industry as an example.

"This [Open Source] is a thriving industry supported by major firms such as IBM and Sun Microsystems that pay substantial amount of money to software developers to develop software and reap the reward through the services they sell," he said.

"Firefox is perhaps the most well known example of Open Source software. The infrastructure of the internet was invented and is run largely on Open Source software."

"All of this innovation occurred without the 'protection' of patents or copyrights, yet the innovators were well rewarded," he said.

"From a public policy view, we'd ideally like to eliminate patent and copyright laws altogether."

But the University of Queensland's Weatherall is not convinced. While she agrees that current patent and copyright laws are flawed, she believes the laws serve a purpose.

"In the Open Source industry, for example, some developers use their copyright rights to require their code to be used in a free and open way."

"In my ideal world, copyright and patents would be more limited than they are today, but they wouldn't go altogether," she said.

"Ideally, you would make adjustments in IP according to industry," she said. "You wouldn't have patents across the board as we do now; but once you start trying to do that, it actually does become quite difficult to draw the line."

The closing date for submissions on the proposed reforms will be Friday, 8 May 2009. More information is available at http://www.ipaustralia.gov.au.