Search

Considering recent litigation in the Australian courts, and an inquiry by the Productivity Commission, this paper calls for patent law reform in respect of the right to repair in Australia. It provides an evaluation of the decision of the Full Court of the Federal Court in Calidad Pty Ltd v Seiko Epson Corporation [2019] FCAFC 115 – as well as the High Court of Australia consideration of the matter in Calidad Pty Ltd v Seiko Epson Corporation [2020] HCA 41. It highlights the divergence between the layers of the Australian legal system on the topic of patent law – between the judicial approach of the Federal Court of Australia and the Full Court of the Federal Court of Australia, and the endorsement of the patent exhaustion doctrine by the majority of the High Court of Australia. In light of this litigation, this paper reviews the policy approach taken by the Productivity Commission in respect of patent law, the right to repair, consumer rights, and competition policy. After the considering the findings of the Productivity Commission, it is recommended that there is a need to provide for greater recognition of the right to repair under patent law. It also calls for the use of compulsory licensing, crown use, competition oversight, and consumer law protection to reinforce the right to repair under patent law. In the spirit of modernising Australia’s regime, this paper makes a number of recommendations for patent law reform – particularly in light of 3D printing, additive manufacturing, and digital fabrication. It calls upon the legal system to embody some of the ideals, which have been embedded in the Maker’s Bill of Rights, and the iFixit Repair Manifesto. The larger argument of the paper is that there needs to be a common approach to the right to repair across the various domains of intellectual property – rather than the current fragmentary treatment of the topic.

This Chapter considers whether the 3D printing revolution will disrupt the traditional approaches to intellectual property and technology transfer in higher education. It explores the theoretical and practical implications of the Maker Movement for education, learning, and access to knowledge. This Chapter reviews the patent landscapes in respect of 3D printing, and notes the increasing rise of patent thickets in the technology field. It highlights questions over patent ownership and collaboration in respect of 3D printing, additive manufacturing, and advanced manufacturing. The Chapter explores various comparative approaches to direct and indirect patent infringement – with regard to 3D printing. It also considers the range of available defences to claims of patent infringement in respect of 3D printing – exploring the defence of experimental use; the private use defence; and the possibility of a defence recognizing the right of repair. This Chapter concludes by stressing that the 3D printing revolution can help promote the public interest of universities through models of open access, open data, and open innovation. Moreover, there is an opportunity to modernize patent law, practice, and policy in light of the emergence of disruptive new technologies such as 3D printing.

This chapter considers the role of patent law in respect of geoengineering. Intellectual Ventures has developed a large portfolio of patents in this area. A number of other private and public entities have also filed patents in the field of geoengineering. In light of the recent precedents of the Supreme Court of the United States in respect of Bilski, Prometheus, Myriad, and Alice, it is worth exploring the question, Should patents on geoengineering be allowed? Defenders of geoengineering would maintain that such technology is legitimate, much like traditional forms of engineering. Critics, such as the ETC Group, have called for a ban on patents in respect of geoengineering. There have been fierce debates over the ethics of geoengineering. Philosophers and policy-makers such as Stephen Gardiner, Clive Hamilton, Bill McKibben, Al Gore, and Naomi Klein have argued over the merits over such technologies. It is useful to situate such a discussion in the context of previous debates over intellectual property and emerging technologies - such as biotechnology, nanotechnology, synthetic biology, and clean technologies. Moreover, this chapter explores the potential for patent thickets in respect of geoengineering. What will be the impact of such patents on research, clean technologies, the environment, the climate? There has also been much concern about the possibility of overzealous enforcement of patents in respect of geoengineering. As such, it is worthwhile considering what policy options for patent abuse will be useful or effective in this field. There is a larger international debate over the governance and regulation of geoengineering – particularly in light of the Paris Agreement 2015.

For emerging technologies such as autonomous vehicles, it is important that the patent system promote high-quality innovation and competition policy. Academic researchers such as Professor Michael Heller and Professor Rebecca Eisenberg have discussed the problem of the ‘tragedy of the anticommons’ and the ‘gridlock economy’. There are also a number of policy responses to trying to address the problem of patent thickets, generally, and, perhaps specifically, in respect of autonomous vehicles. The option of patent pools have been used to resolve the problem of fragmented, overlapping patent rights in certain crowded markets. Cross-licensing can be used in certain circumstances. Public licensing is helpful in respect of inventions, in which there has been public funding. Compulsory licensing can be used to provide access to key inventions – in return for compensation to the patent holder. Competition law and antitrust law can also be invoked in certain exceptional circumstances in which there has been an abuse of intellectual property rights.