navigating the patent maze

Because Australian patent law is silent with respect as to an experimental use exception, it’s been unclear whether such an exception exists.  Although the consensus of patent attorneys in Australia that I know advised "no experimental use exception".  In view of the widespread uncertainty and concerns that the lack of an exception is inhibiting research and development - especially in biotechnology - the Advisory Council on Intellectual Property (ACIP) in Australia examined the need and desirability of an exception and has issued a report of their conclusions. 

Briefly, ACIP recommended the following amendment to the Patents Act:

The rights of a patentee are not infringed by acts done for experimental purposes relating to the subject matter of the invention that do not unreasonably conflict with the normal exploitation of a patent. 

Acts done for experimental purposes relating to the subject matter of the invention include:

• determining how the invention works;
• determining the scope of the invention;
• determining the validity of the claims; and
• seeking an improvement to the invention.

In other words, the amendment would allow experimentation on the invention, but not use of the invention for its intended purpose. 

No word on if or when this amendment will be adopted.