Document ID: chunk:federal_register_of_legislation:C2020A00009:clause:4_6:p1
Version: federal_register_of_legislation:C2020A00009
Segment Type: clause
Provision Reference: sch 4 cl 6 (pt 1/2)
Character Range: 29268–32074

6  Subsections 133(2), (3) and (3B)
Repeal the subsections, substitute:

Making an order
 (2) After hearing the application, the court may make the order if satisfied that:
 (a) all of the conditions in subsection (3) exist; or
 (b) the patentee has contravened, or is contravening, Part IV of the Competition and Consumer Act 2010 or an application law (as defined in section 150A of that Act) in connection with the patent.
 (3) The conditions in this subsection are:
 (a) demand in Australia for the original invention is not being met on reasonable terms; and
 (b) authorisation to exploit the original invention is essential to meet that demand; and
 (c) the applicant has tried for a reasonable period, but without success, to obtain authority from the patentee to exploit the original invention on reasonable terms and conditions; and
 (d) the patentee has given no satisfactory reason for failing to exploit the patent to the extent necessary to meet the demand for the original invention in Australia; and
 (e) it is in the public interest to provide the applicant with authorisation to exploit the original invention, having regard to the following:
 (i) the benefits to the public from meeting the demand for the original invention;
 (ii) the commercial costs and benefits to the patentee and the applicant from providing authorisation to exploit the original invention;
 (iii) any other matters the court considers relevant, including matters relating to greater competition and any impact on innovation; and
 (f) if the applicant is the patentee of another invention (the dependent invention) and is seeking the authorisation for the purposes of exploiting the dependent invention:
 (i) the dependent invention cannot be exploited by the applicant without exploiting the original invention; and
 (ii) the dependent invention involves an important technical advance of considerable economic significance on the original invention.

Form of order
 (3A) If the applicant is the patentee of the dependent invention, the order must:
 (a) require the patentee to grant to the applicant a licence to exploit the original invention only to the extent necessary to exploit the dependent invention; and
 (b) if the patentee so requires—require the applicant to grant to the patentee a licence on reasonable terms to exploit the dependent invention.
 (3B) An order must direct that a licence:
 (a) is not to give the licensee, or a person authorised by the licensee, the exclusive right to exploit the original invention or the dependent invention (if applicable); and
 (b) is to be assignable only in connection with an enterprise or goodwill in connection with which the licence is used.
 (3C) An order may direct that a licence is to be granted on any other terms specified in the order that the court