Commonwealth Consolidated Acts

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Revocation of patent after grant of compulsory licence under section 133

             (1)  Where a compulsory licence ordered under section 133 relating to a patent is granted, an interested person may apply to the Federal Court, after the end of the prescribed period, for an order revoking the patent.

             (2)  After hearing the application, the court may make the order if satisfied that:

                     (a)  all of the following apply:

                              (i)  demand in Australia for the original invention is continuing to not be met on reasonable terms;

                             (ii)  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;

                            (iii)  it is in the public interest to revoke the patent, having regard to the matters in subsection (3); or

                     (b)  the patentee 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 matters are as follows:

                     (a)  the benefits to the public from meeting the demand for the original invention;

                     (b)  the commercial costs and benefits to the patentee and the applicant from revoking the patent;

                     (c)  any other matters the court considers relevant, including matters relating to greater competition and any impact on innovation.

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