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Bio Technology : October 2009
48 Australasian BioTechnology Volume 19 • Number 3 • October 2009 AusBioFEATURE By Richard Gough, Partner, Baker & McKenzie Patent enforcement in Australia – is that the cavalry on the horizon? Australian entrepreneurs often succeed because they are the first to find and exploit a particular niche. Cochlear and ResMed are famous ex- amples in the Australian biotechnology industry. Patent law is designed for such creators and pioneers, but how useful is a patent? Is it a licence to print money? One answer is that a patent is as useful as it is enforced -- and therein lays the problem. A decision to commence patent proceedings is an invest- ment decision, and for economic reasons, most Australian patents are not enforced. In most cases, the value of the patent and the financial resources of the company are insufficient to justify the cost and risk of taking enforcement action. This does not, of course, mean that there is no point in owning a patent. It is well known, for instance, that many Japanese companies have extensive portfolios of Austra- lian patents, but rarely enforce them. The portfolios have real economic value as they deter infringement: to would- be infringers they represent the threat that the fruits of their infringing labour may one day have to be repaid. This is underlined if the patent owner takes the strategic decision to commence proceedings in a particular case pour encourager les autres. The price of obtaining a patent is cheap compared to the costs of enforcement. It can cost tens-of-thousands of dollars just to obtain reliable advice as to whether there is infringement and whether the patent is vulnerable to removal on one of the many grounds of invalidity; but it can cost millions of dollars to take a patent case to trial and to exhaust all avenues of appeal. In that context, on 21 August 2009, the Advisory Council on Intellectual Property (ACIP) released an interim report on Post-Grant Patent Enforcement Strategies, outlining proposals intended to assist inventors to enforce patent rights. The measures include the establishment of an intel- lectual property disputes centre in Australia and increased powers for the Australian Customs Service to seize infring- ing goods. Richard Gough is a lawyer who specialises in patent, trade mark and copyright advice and litigation and heads Baker & McKenzie's Australian Life Sciences practice group.