This article picks up on Di Nicol’s suggestion that the “role of law in regulating and facilitating … innovation must be adequate and appropriate” and argues that what is lacking now is, in fact, an adequate and appropriate understanding of how patent legislation operates as a regulatory instrument. The Australian Patents Act 1990 (Cth) (the “Patents Act”) has been selected for analysis of this issue.
Here, I am not positing what the purposes of the Act are (or should be), but I am suggesting that a new perspective on the role of the Act will be useful. To be clear, this paper is a shift away from the position taken by others that the intellectual property system should be better regulated. The approach adopted here, instead, is to view the Patents Act itself as performing a regulatory function. That is, it sees the Act as a piece of legislation that has, as a focus, the “intentional activity of attempting to control, order or influence the behaviour of others”.
This article discusses a number of benefits that arise from the adoption of the approach.
Chris Dent is a Senior Research Fellow at the Intellectual Property Research Institute of Australia at the University of Melbourne. His research has focused on alternative perspectives on the control of knowledge as represented by the intellectual property system and he has published work that has applied regulatory theory to the law of copyright, patents and defamation.
© 2011 Journal of Law, Information & Science and Faculty of Law, University of Tasmania.