Senate committee backs computerised IP decision-making
Intellectual Property June 26, 2018 10:38 am By Miklos Bolza | Sydney

The Senate Economics Legislation Committee has thrown its support behind a bill which permits the use of computer programs to approve patents, trade marks, designs and plant varieties.

The proposed provisions, outlined in the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Bill 2018, aim at improving Australian IP rights legislation “to ensure it better meets its objectives of promoting and incentivising investment in creativity, innovation, research and technology,” the Committee said in a report released Friday.

If approved in Parliament, the provisions will amend the Patents Act, Designs Act, Plant Breeders Rights Act, and Trade Marks Act by permitting the Commissioner and Registrars of IP Australia to “arrange for a computer program under their control to make decisions, exercise powers and comply with obligations under the legislation”.

Protections have also been included which will allow IP Australia to override these automated decisions if the Commissioner or a Registrar is satisfied they are not correct.

“Technological developments have and will continue to change the way government does business,” Assistant Minister for Finance David Coleman said during his second reading speech on the bill in the House of Representatives.

“This schedule seeks to futureproof the intellectual property system, updating written and filing requirements to allow greater flexibility and allow communication with clients and stakeholders through the most efficient and effective means. The schedule also allows the use of computerised decision-making to assist with the efficient administration of intellectual property rights, with appropriate safeguards.”

An explanatory note by IP Australia said the new automated process will “improve the timeliness and accuracy of decision making,” promising it would continue to explore new technology for use within the intellectual property space. While the power to implement the computerised decision making process will be broad, the technology itself will only be used with direct approval from the Commissioner or Registrar.

“Importantly, where the Commissioner or Registrar authorises the use of a computer program to make a decision, the decision made by a computer program must comply with all of the requirements of particular legislative provisions, in the same way that a person’s decision would. This means that existing appeal mechanisms are in place.”

The Committee’s report also unveils a number of other changes to “streamline and align the administration of the Australian IP system” including reducing the grace period for trade mark non-use, clarifying when parallel importation does not infringe a trade mark, and changing essentially derived variety declarations for plant breeders.

The new bill is a result of a review into intellectual property arrangements by the Productivity Commission and another into plant breeder’s rights by the Advisory Council on Intellectual Property. Feedback was also gathered by IP Australia through public consultation. Nine submissions were received from entities such as the Law Council of Australia, the Australian Seed Federation, CropLife Australia, and the International Association for the Protection of Intellectual Property.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.