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Published online by Cambridge University Press: 24 January 2025
There is a growing awareness in Australia that current laws are inadequate to protect the increasing industrial application of biotechnology. To overcome these difficulties there is a need for co-operation both nationally and internationally. The Biological Control Act 1984 (Cth) and the Patents Amendment Act 1984 (Cth) are indicative of a trend towards this end.
The Biological Control Act 1984 (Cth) involves co-operation between the Commonwealth and the States to overcome gaps in the Commonwealth's power, while the Patents Amendment Act 1984 (Cth) involves international co-operation under the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedures 1977. Whereas the Patents Amendment Act 1984 (Cth) extends and secures the patent protection available for biotechnological inventions, the Biological Control Act 1984 (Cth) aims to protect certain scientific endeavours from undue interference from the law itself.
1 Ronald MacPerry, John William Hincks, Stephen John Victor and Paul Griffiths v Commonwealth Scientific and Industrial Research Organization (unreported judgment of Stephen J No 9 of 1980).
2 Industries Assistance Commission. Draft Report on Biological Control of Echium Species (including Paterson's Curse/Salvation Jane). AGPS 1985 esp at p 1.2.
3 Ibid Summary (I).
4 Ibid.
5 Commonwealth of Australia House of Representatives Parliamentary Debates Hansard 23 August 1984 at p 209 (E Cameron).
6 Biological Control Act 1984 (Cth) s 8. The Authority is at present constituted by the Commonwealth Minister for Primary Industry. After 1 April 1985, it shall be designated to be constituted by either the Commonwealth Minister or a relevant Minister from any of the participating States.
7 Ibid s 52.
8 Carne, PB and Whitten, M J, “The Context of Biological Control Research in Australia”Google Scholar Unpublished paper presented at the Workshop following the International Congress of Entomology August 1984.
† These procedures are only excluded in cases of emergency s 30. But even emergency declarations are subject to review by the AAT s 56(1)(f).
†† While applications in respect of target organisms must be published in the Gazette and State newspaper s 17(1), applications in respect of control agents need only be published in the Gazettes 26(1).
* The Commission of Inquiry may be appointed under ss 19(1) and 28(1) of the Biological Control Act, or where appropriate the Industrial Assistance Act 1973 or Environment Protection (Impact of Proposals) Act 1974.
** Whether a particular decision is, or is not subject to review by the AAT, is governed bys 56(1) of the Act.
9 Biological Control Act 1984 (Cth) ss 36(3) and 37(4).
10 Ibid ss 20(l)(e), 29(l)(d), 36(3)(c) and 37(4)(c).
11 Ibid s 38(3)(b).
12 Industries Assistance Commission op cit esp Ch 8.
13 Ibid pp 8.9-8.11.
14 Ibid pp 8.13 and 10.1.
15 See the Preamble to the Biological Control Act and the definition of “Territory” ins 2(1) of the Act.
16 Biological Control Act 1984 (Cth) s 4.
17 (1983) 49 ALR 19, 29.
18 Ibid 36; see also Brennan J at 52 and Deane J at 59-60.
19 The NSW Bill was introduced into Parliament on 19 November 1985.
20 See generally, OECD, Biotechnology and Patent Protection. An International Review OECD Paris 1985; and WIPO, Industrial Property Protection of Biotechnology Inventions - Analysis of Certain Basic Issues (Doc BIG/281) 1985.
21 Paris Convention for the Protection of Industrial Property 1883.
22 The Patent Co-operation Treaty 1970 provides that a person who complies with certain procedural formalities may gain protection in any member State designated in the application.
23 Strasbourg Agreement concerning the International Patent Classification 1971.
24 US Patent No 141,072 (1873). See Cooper IP, Biotechnology and the Law (1982) 2.5-2.6.
25 The Patent Office in Rank Hovis McDougall Ltd's Application (1976) 46 AOJP 3915 acknowledged that patent protection was available to micro-organisms where the normal pre-conditions to the granting of a patent had been met.
26 WIPO, Records of the Budapest Diplomatic Conference for the Conclusion of a Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure 1980, 483.
27 WIPO, Industrial Property Vol 24 (1985) 16, 163, 235 and 321.
28 Statistics derived by The Hon Barry Jones from Patent Office survey entitled Genetic Engineering - Patent Trends and Developments 1983 - see Commonwealth of Australia House of Representatives Parliamentary Debates Hansard 28 March 1984 897.
29 [1971] RPC 425.
30 Rank Hovis McDougall Ltd's Application supra n 25.
31 Patents Act 1952 (Cth) s 40(3).
32 Ibid s l77(ae).
33 See Article 3 of the Treaty, and the definition of “prescribed depositary institution” in s 6 of the Patents Act 1952 (Cth).
34 Commonwealth of Australia House of Representatives Parliamentary Debates Hansard 28 March 1984 899 (Barry Jones).
35 In re Koninklijke Nederlandsche Gist - en Spiritusfabriek N.V. (Baker's Yeast) decision (1975) 6IIC 207 and affirmed in the Bakterienkonzentrat (Concentrate of Micro-organisms) decision (1981) GRUZ 263.
36 Budapest Treaty Article 6.
37 Thomas, P, “Patents for Genetic Engineering Inventions”, in Department of Science and Technology, Genetic Engineering: Commercial Opportunities in Australia, Proceedings of a Symposium held in Sydney 18-20 November 1981. AGPS 1982 194-195Google Scholar.