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Bio Technology : October 2009
Volume 19 • Number 3 • October 2009 Australasian BioTechnology 49 AusBioFEATURE If implemented, the measures may bring incremental im- provements for inventors, but it is unlikely that an inventor who decides not to enforce patent rights under the current system would make a different decision if the proposed ACIP measures were in place. The centrepiece of the ACIP proposals is a Patent Tribunal with no judicial power and no powers of enforcement.This is hardly an answer for those who wish to enforce their patents. There are already many well-established ways of reaching a consensual outcome by alternative dispute resolution processes such as mediation. A Patent Tribunal would add something to the array of ADR options, but little or nothing to the enforcement landscape. Litigation is necessary in most cases exactly because there is no consensus between the parties. The majority of cases settle, but only after the parties have spent enough money on the court process to countenance compromise. The Customs proposal is potentially useful: the Australian Customs Service already provides a highly effective seizure regime in relation to imported products that infringe notified trade marks and copyrights. As a practical matter it would be helpful to a patent owner to have Customs seize a shipment of products that are thought to infringe a patent without the need for a court order. On the other hand, Customs has immense demands to meet, and unless it is given more resources, it will have to divert attention away from other issues to deal with patent infringements. Also, patent law can be complicated in its application to particular circumstances, and the Australian Customs Service is not in a position to make the series of judgment calls that would be required in order to assess whether a particular product may infringe the claims of a particular patent. Ultimately the liability is therefore likely to remain with the patent owner, which would no doubt have to provide substantial security for any seizures; and if an importer challenged a seizure, the issue would end up in court in any event. ACIP makes several other proposals in the areas of com- munication, education, advice and ADR, both in Australia and overseas. No-one is going to disagree with more communication, more education, more advice or more ADR, but they are unlikely to provide the golden enforcement bullet. What could make a difference? Without upsetting the entire judicial system and the separation of powers in Australia, the answer must lie with reducing the cost of patent litigation. In practice much of the cost stems from two factors: the complexity of patent law and the manner in which it is applied, including court processes and attitudes to admitting and attributing weight to evidence. Australian patent law shares with tax law a seemingly limitless, hydra-like ability to reproduce new and ever-more complex branches and sub-branches, each of which requires its own special attention. These branches spring from judge-made law as much as from legislative reform. If you are defending a patent infringement case, you know that you only have to succeed on one of the large number of potential grounds of invalidity for the patent owner's case to fall on its face at enormous cost several years after it was commenced. You therefore rely on as many of the grounds as are tenable; both sides generate voluminous evidence and arguments about them; and the court makes extensive findings, frequently marking shifts in the law. In so doing the court applies complex rules about evidence, often in a strict and conservative manner, and this can greatly increase the difficulty and expense of the litigation. The net effect of this legal and evidentiary maelstrom is that the parties spend considerable time and money ensuring they address everything to the last letter, and the cost of patent litigation spirals upwards. Patent enforcement is and will remain a user-pays system. Well-resourced patent owners will continue to do better than their less well-heeled competitors, because they can best afford it. The ACIP proposals will make little or no difference to that reality: anyone can summon the cavalry, but you will still have to pay for the privilege. The ACIP interim paper is available at www.acip.gov.au. Comments should be provided to ACIP by 30 September 2009.