Patents Act 1990

Exploitation of an invention in the circumstances mentioned in subsection (3) is not an infringement of:

if a patent application for the invention is pending—the nominated person’s rights in the invention; or

if a patent has been granted for the invention—the patent.

Despite subsection (1), if terms relating to the exploitation of the invention have been agreed or determined in accordance with section 165, the exploitation is an infringement unless the terms are complied with.

The circumstances are as follows:

the relevant Minister considers that the relevant authority has tried for a reasonable period, but without success, to obtain from the applicant and the nominated person, or the patentee, an authorisation to exploit the invention on reasonable terms;

the relevant Minister approves, in writing, the exploitation;

the invention is exploited for Crown purposes;

if the exploitation is by a person authorised by a relevant authority for the purposes of subparagraph 160A(1)(b)(ii)—the person is authorised by the relevant authority before the exploitation starts;

at least 14 days before the exploitation starts, the relevant authority gives the applicant and the nominated person, or the patentee:

a copy of the approval referred to in paragraph (b); and

a written statement of reasons for approving the exploitation.

Section 25D of the Acts Interpretation Act 1901 sets out rules about the contents of a statement of reasons.

An approval given under paragraph (3)(b) is not a legislative instrument.

Relevant Minister means:

in relation to the exploitation of an invention by or for the Commonwealth—the Minister; or

in relation to the exploitation of an invention by or for a State—the Attorney‑General of the State; or

in relation to the exploitation of an invention by or for a Territory—the Attorney‑General of the Territory.