The price of market access: patents in AUSFTA and since

Abstract

New generation trade agreements reach far behind borders, affecting many areas of domestic policy not previously associated closely with trade. One of the most uneasy of these areas is intellectual property, particularly patent monopolies. The USA has been a major force behind the extended reach of patent monopolies using preferential trade agreements. The patent and data exclusivity provisions of the AUSFTA were proposed by the USA. This paper provides detailed evidence about how such 'TRIPS+' policies compare to a balanced patent policy – one equally favouring creators and users of technology. Australia has never had an active patent agenda, but since AUSFTA has been willing to accept in its bilateral and regional trade deals highly prescriptive rules that tie the hands of future governments. The overall trend has thus been towards increasing imbalance, with Australian patent policy now having a very broad reach and very low eligibility standards. This particularly affects the cost of medicines, where large numbers of relatively uninventive patents surround a blockbuster drug and delay the market entry of generic alternatives. In addition to outlining the costs of Australia’s current patent policy approach, the paper concludes by highlighting a more balanced and less costly way forward. Show more