There have been numerous recent developments in intellectual property (IP) law in Australia.
Below is a summary of some key developments. As with any international jurisdiction, IP law in Australia is complex and requires the expertise of an experienced specialist to navigate it correctly.
INTELLECTUAL PROPERTY LAWS AMENDMENT ACT 2015
Following on from the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth), the Intellectual Property Laws Amendment Bill 2014 (Cth) recently passed the Australian Senate and will soon become law.
The two major changes introduced by the new Act are:
- The introduction of compulsory licensing provisions under the Patents Act 1990 (Cth) that will allow pharmaceutical manufacturers to apply to manufacture generic versions of patented pharmaceuticals for export to developing countries.
- The unification of the patent examination procedure for Australia and New Zealand, and the creation of a single register of patent attorneys for Australian and New Zealand practitioners.
HIGH COURT GRANTS LEAVE TO APPEAL BRCA1 GENE PATENT DECISION
In D’Arcy v Myriad Genetics Inc  FCA 65, the Federal Court found that isolated genetic material was patentable in Australia. This decision was upheld on appeal to the Full Federal Court.
The High Court has now granted leave to appeal from the Full Federal Court’s decision, and it is expected that the hearing will be in April 2015.
NEW FRANCHISING CODE OF CONDUCT
Australia’s new Franchising Code of Conduct took effect from 1 January 2015.
Compliance with the Code is mandatory. It is more important than ever that franchise agreements and disclosure comply, particularly because new, comprehensive penalty provisions have been introduced for non-compliance.
A summarised list of some of the amendments to the Code is below:
- An information statement must be provided to a prospective franchisee as soon as practicable after that franchisee applies or even just expresses an interest in acquiring a franchised business.
- There is an express obligation to act towards other parties to a franchise agreement in good faith.
- There is only one form of disclosure document, regardless of the turnover of the franchised business. Existing disclosure documents must be updated by 31 October 2015.
- There have been several changes to the mandatory terms of franchise agreements, including dispute resolution provisions; jurisdiction and cost for settling disputes; restraint of trade provisions; and termination in ‘special circumstances’.
- Ongoing disclosure requirements have been broadened to include ‘associates’ and directors of associates’.
- There are new record keeping obligations.
- A separate bank account must be maintained by the franchisor for marketing fees and advertising fees contributed by franchisees.
- Changes have been made to the end of term notice and arrangements.
- A master franchisor no longer need provide a disclosure to a subfranchisee. (Disclosure by the subfranchisor only is required.)
Gadens is able to advise on ensuring compliance with the Franchising Code of Contact. Please contact please contact Michael Owens (firstname.lastname@example.org) or Katrina Chambers (email@example.com).
Major changes to the Privacy Act 1988 (Cth) came into effect from 12 March 2014. The changes impact the way businesses collect, use, store and disclose personal information, and privacy policies must comply with the changes.
Special rules apply to direct marketing, overseas disclosure, collection of unsolicited information, requests for access and correction, and complaints.
The changes introduce a new obligation to put systems and procedures into place that will ensure that all organisations comply with the new Australian Privacy Principles, and that privacy complaints and enquiries are dealt with appropriately, including requests for access. Private sector organisations should also designate a Privacy Officer and set out in writing what the Privacy Officer’s obligations will be.
The Australian Privacy Principles apply to any private sector organisation with an annual turnover of more than A$3 million. Health service providers and businesses that buy or sell personal information without the consent of the relevant individuals must also comply, regardless of their turnover.
Finally, credit providers should be aware that there are new provisions dealing with the use and disclosure of credit information and credit eligibility information, including consent requirements. There is also a new, recently registered, Credit Reporting Privacy Code.