Patent law and the march of technology – did the productivity commission get it right?

Technology continues to march ahead at an increasingly rapid rate. As a response to the demands placed on intellectual property (IP) systems by changing technologies, there have been changes in the scope and duration of IP protection. In August 2015, the Productivity Commission (PC) was requested by the Australian Government to undertake an “inquiry into Australia’s intellectual property arrangements, including their effect on investment, competition, trade, innovation and consumer welfare”. This inquiry was to take more of a holistic view of the IP system in searching for improvements. While there has been considerable coverage of the implications of the recommendations of the PC in relation to copyright law reform, there has been surprisingly little in respect of other areas of IP law. Given the dominance of patents in influencing innovation and social welfare, this is surprising. This article appraises the recommendations of the PC in the patent law area, particularly in light of the PC’s Terms of Reference. It also considers some matters the PC omitted to consider but which are nonetheless of paramount importance as innovation rapidly progresses.