Academic journal article Melbourne Journal of International Law

On the Convergence of U.S. and Australian Patent Law

Academic journal article Melbourne Journal of International Law

On the Convergence of U.S. and Australian Patent Law

Article excerpt

[The environment for US-Australian patent law convergence is characterised by old and new influencing factors, structural similarities and differences in national legal systems, and coupling between intellectual property law, competition law and trade policy. Specific observations of contemporary convergence and divergence are surveyed and coarsely categorised to identify trends. Evidently, a shift has occurred in the prevailing Australian attitude towards multilateral agreement obligations that require increased protection of intellectual property rights. The basis and justification for this shift are fallacious; nonetheless there may be examples of recent legal manifestations that serve to undermine patent law convergence.]


The harmonisation of United States and Australian patent law represents only a narrow slice of possible global legal convergence issues. Nevertheless it has a contemporary importance to the general study of legal convergence that extends beyond the obvious significance it has to the practitioners whom it directly affects. Because it is an extreme case, it is valuable as a case study from which to induce more general conclusions about legal convergence, especially in the field of patent law. If there ever existed a set of circumstances on which to base a strong prediction of cross-border legal convergence, the circumstances surrounding United States and Australian patent law might comprise it today.

Indeed, strong forces are driving the convergence of Australian and US patent law. The most obvious of these is the multilateral Agreement on Trade-Related Aspects of Intellectual Property Rights (`TR/PS'). (1) It is difficult to overstate the significance of TRIPS to the trajectory of international intellectual property (`IP') law. However, particular to the relationship between Australia and the US, there are more subtle forces for convergence that have already affected other categories of law. (2) Inveterate factors driving commercial, social and ultimately legal convergence of Australia and the US include: common language, significant reciprocal trade, common trading partners, increasingly convenient trans-Pacific travel and mass media exportation of US popular culture (and now to a lesser extent, Australian popular culture).

A new factor for convergence resulted partially in response to the Asian currency crisis of 1997. Asian and Pacific Rim countries, including Australia, have reviewed and are revising aspects of their corporate law related to investment and shareholder protection in order to remain attractive to the flow of foreign capital. In the case of Australia, such revisions have arguably led to an `Americanisation' of Australian corporate law. (3) Another new factor is the entry of email and e-commerce into mainstream business communication. Twenty-four hour reception and queuing features have diminished the relevance of differences in time zone that hinder Australia-US communications. Lastly, Australia and the US are presently negotiating a free trade agreement that will provide greater reciprocal market access. (4)

However, legal convergence is never a certainty; there are factors working against the convergence of US and Australian law. For example, the vast difference in size between the US and the Australian economies tends to limit the realisation of opportunities for bilateral legal convergence. (5) Moreover, Australians may have adopted a self-image as avid legal innovators. (6) Australian legal originality has emerged in many areas of IP law, including some where Australia is arguably not well positioned to lead. (7) The Innovation Patent is the latest experiment by Australia in patent law. It is also a glaring contemporary example of legal divergence.

Furthermore, physical proximity to and trade with developing Asian countries, and membership in the Asia Pacific Economic Cooperation (`APEC'), may lead Australia to sympathise partially with an interest that some Asian countries may have in frustrating or delaying TRIPS compliance and associated legal convergence. …

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