RECOMMENDATIONS
Recommendation 1
3.156 The
Committee recommends that the Government support and expand on the collection
of data, research and analysis concerning genetic testing and treatment in
Australia, in line with recommendation 19-1 of the 2004 Australia Law Reform
Commission report Genes and ingenuity.
Recommendation 2
3.157 The
Committee recommends that the Government conduct a public consultation and
feasibility study regarding establishing a transparency register for patent
applications and other measures to track the use of patents dealing with genes
and genetic materials.
Recommendation 3
4.137 The
Committee recommends that the Senate refer the Patent Amendment (Human Genes
and Biological Materials) Bill 2010 to the relevant Senate committee for
inquiry and report.
Recommendation 4
5.161 The
Committee recommends that the Government provide a combined response addressing
the Committee's inquiry into gene patents; the 2004 report on gene patents by
the Australian Law Reform Commission; the review of patentable subject matter
by the Australian Council on Intellectual Property (ACIP); and the review of
Australia's patent system by IP Australia. The Committee recommends that the
response be provided not later than mid-2011 or three months after the release
of the findings of all reviews.
Recommendation 5
5.162 The
Committee recommends that, at an appropriate time following the release of the
ACIP review of patentable subject matter and the IP Australia review of the
patent system, the Community Affairs References Committee be tasked with inquiring
into the Government's response to, and implementation of, the recommendations
of those reviews, as well as the recommendations of the Committee's report on
gene patents.
Recommendation 6
5.172 The
Committee recommends that the Patents Act 1990 be amended so that the
test for obviousness in determining inventive step is that a claimed invention
is obvious if it was 'obvious for the skilled person to try a suggested
approach, alternative or method with a reasonable expectation of success'.
Recommendation 7
5.173 The
Committee recommends that the Patents Act 1990 be amended to remove the
limitation that 'common general knowledge' be confined to that existing in
Australia at the time a patent application is lodged (that is, that 'common
general knowledge' anywhere in the world be considered).
Recommendation 8
5.174 The
Committee recommends that the Patents Act 1990 be amended to remove the
requirement that 'prior art information' for the purposes of determining
inventive step must be that which could reasonably have been expected to be
'ascertained' (that is, that the 'prior art base' against which inventive step
is assessed not be restricted to information that a skilled person in the
relevant field would have actually looked for and found (ascertained)).
Recommendation 9
5.175 The
Committee recommends that the Patents Act 1990 be amended to introduce
descriptive support requirements, including that the whole scope of the claimed
invention be enabled and that the description provide sufficient information to
allow the skilled addressee to perform the invention without undue
experimentation.
Recommendation 10
5.179 The
Committee recommends that the Patents Act 1990 be amended to provide
that an invention will satisfy the requirement of 'usefulness' in section 18(1)
only in such cases as a patent application discloses a 'specific, substantial
and credible' use; the Committee recommends that such amendments incorporate
the full set of recommendations on this issue from the Australian Law Reform
Commission's 2004 report, Genes and ingenuity (Recommendations 6-3 to
6-4).
Recommendation 11
5.185 The
Committee recommends that the Patents Act 1990 be amended to clarify
the circumstances in which the Crown use provisions may be employed; and that
the Government develop clear policies for the use of the Crown use provisions.
The Committee recommends that the Government adopt the Australian Law Reform
Commission's recommendations on this issue from its 2004 report, Genes and
ingenuity (Recommendations 26-1 to 26-3).
Recommendation 12
5.190 The
Committee recommends that the Government amend the Patents Act 1990 to
clarify the scope of the 'reasonable requirements of the public' test, taking
into account the recommendation of the Australian Law Reform Commission on this
issue in its 2004 report, Genes and ingenuity (Recommendation 27-1); the
Committee recommends that the Government review the operation of the competition
based test for the grant of a compulsory licence, with particular reference to
its interaction with the Trade Practices Act 1974.
Recommendation 13
5.195 The
Committee recommends that the Patents Act 1990 be amended to include
a broad research exemption.
Recommendation 14
5.197 The
Committee recommends that, to assist courts and patent examiners with the
interpretation and application of the Patents Act 1990, the Government
consider amending the Act to include anti-avoidance provisions.
Recommendation 15
5.198 The
Committee recommends that, to assist courts and patent examiners with the
interpretation and application of the Patents Act 1990, the Government
consider amending the Act to include objects provisions.
Recommendation 16
5.202 The
Committee recommends that the Government establish a patent audit committee.
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