Outcomes from the Review of the NIS

IP Australia’s Approach IP Australia has embraced the NIS Review as an opportunity to consider the broader context in which the innovation and IP systems operate globally and within Australia. In making its submission, IP Australia’s intention was to: (a) Promote a better understanding of the role of IP rights in supporting national innovation. (b) Consider new opportunities for the IP system to advance national innovation.

Venturous Australia On 9 September 2008 Senator Kim Carr, Minister for Innovation, Industry, Science and Research, released the findings of the Review of Australia's National Innovation System (NIS). The report entitled “Venturous Australia – concludes that Australia is starting to fall behind its international counterparts.

Recommendations of the Review The recommendations made in the report, range across a number of key themes including innovation in business, strengthening people and skills, excellence in national research, information and market design, and taxation. There are also several recommendations relating to intellectual property (IP), namely recommendations 7.2, 7.3, 7.4, 7.8, 7.10 & 7.14.

Recommendation 7.2 Patent law should be reviewed to ensure that the inventive steps required to qualify for patents are considerable, and that the resulting patents are well defined, so as to minimise litigation and maximise the scope for subsequent innovators. Rationale: If patents are granted too easily or too broadly, the patent system can work against innovation. Wherever the monopoly extends, innovation can be inhibited.

Recommendation 7.2 IP Australia’s Position: Australia’s standard for inventiveness is somewhat lower than the standard in other countries. This can make it more difficult for Australian innovators to find sufficient freedom to operate without infringing others’ patents. It can also present problems for Australian exporters, who may find that they cannot secure the same degree of protection in their export markets as they may be able to secure in Australia. To implement this recommendation IP Australia will need to facilitate legislative changes to the Patents Act 1990 and Patent Regulations 1991.

Recommendation 7.3 Professional practitioners and beneficiaries of the IP system should be closely involved in IP policy making. However, IP policy is economic policy. It should make the same transition as competition policy did in the 1980s and 90s to being managed as such. Rationale: IP policy and economic policy are largely complementary. The IP system encourages investment in innovation and thus supports Australia’s economic growth.

Recommendation 7.3 IP Australia’s Position: IP Policy also has significant social implications, through its potential to diffuse knowledge, influence living standards and deal with issues such as traditional knowledge, IP piracy and counterfeiting. Furthermore, IP policy is part of international policy. The IP system is framed by international treaties and agreements to which Australia is a signatory. This multidimensional nature of IP policy requires the establishment of mechanisms to improve its coordination across Government, taking into account its economic, legal, social and international nature.

Recommendation 7.4 Firms asserting or defending intellectual property should have a right to opt out of ‘appellate double jeopardy’. Rationale: This recommendation is aimed at reducing the financial burden imposed by litigation and the appeals process, particularly on small and medium-sized enterprises (SMEs).

Recommendation 7.4 IP Australia’s Position: The proposed solution may not adequately meet its objective of ‘levelling the playing field between larger and smaller firms’, since the solution does not address the more pressing issue, namely the costs associated with taking enforcement action. An alternative and more effective solution may be to improve access to alternate IP dispute resolution processes such as mediation and arbitration, with a focus on resolving IP disputes without recourse to costly Court processes.

Recommendation 7.8 Australian governments should adopt international standards of open publishing as far as possible. Material released for public information by Australian governments should be released under a creative commons licence. Rationale: This recommendation relates to releasing government information under a creative commons licence. The recommendation would allow government information to be released into the public domain in a way that encourages follow on innovation and collaboration.

Recommendation 7.8 IP Australia’s Position: An Open Access Policy for information management has already been implemented in some Federal Government Agencies such as Geoscience Australia and the National Health and Medical Research Council. Issues of copyright ownership will need to be carefully considered – only copyright owners can release information under a creative commons licence. The Government does not necessarily own the copyright in all the material which it releases publicly.

Recommendations 7.10 & 7.14 Recommendations 7.10 and 7.14 are similar in their nature and are aimed at ensuring that scientific knowledge produced in Australia, including information and content funded by the Australian government, is readily accessible and available in machine searchable repositories over the Internet. Rationale: To allow reuse and modification of existing scientific work through more open IP licensing and community norms; and to encourage other countries to make their scientific information available and accessible for reuse by Australian researchers.

Recommendations 7.10 & 7.14 IP Australia’s Position: Greater sharing and dissemination of information and research can be a powerful driver for innovation. Where there is commercial value in material, the Government needs to make sure that it adopts a strategy that provides net benefits for Australia. In other words the decision to place knowledge into a machine searchable repository should be based on a sound IP strategy which takes into consideration how the owner intends to extract a return on their investment.

Recommendations 7.10 & 7.14

Recommendations 7.10 & 7.14 The challenge we face is how to determine and then encourage a best practice approach within Australia. To answer this, we believe it’s necessary to: work with other stakeholders; share information about IP Australia’s 4 IP rights areas; learn about other forms of IP (both new and traditional); and, most importantly - keep an open mind.

Next Steps Government White Paper (public release expected early 2009) QUESTIONS

Further Information Contact Geoff Sadlier Director, Strategy & Business Growth IP Australia Ph: 02 6283 2114 Email: geoff.sadlier@ipaustralia.gov.au