2. The Parties shall endeavour to pursue quality patent examination, which may include:
(a) that in determining prior art, relevant publicly available documented information related to traditional knowledge associated with genetic resources may be taken into account;
(b) an opportunity for third parties to cite, in writing, to the competent examining authority prior art disclosures that may have a bearing on patentability, including prior art disclosures related to traditional knowledge associated with genetic resources; and
(c) if applicable and appropriate, the use of databases or digital libraries containing traditional knowledge associated with genetic resources.
Article 15.19. Cooperation on Request
Cooperation activities undertaken under this Chapter are subject to the availability of resources, and on request, and on terms and conditions mutually decided upon between the Parties.
Section C. Trade Marks
Article 15.20. Types of Signs Registrable as Trade Marks
Neither Party shall require as a condition of registration that a sign be visually perceptible. A Party may require a concise and accurate description, or graphical representation, or both, as applicable, of the trade mark.
Article 15.21. Collective and Certification Marks
Each Party shall provide that trade marks include collective marks and certification marks. A Party is not obligated to treat certification marks as a separate category in its laws and regulations, provided that those marks are protected. Each Party shall also provide that signs that may serve as geographical indications are capable of protection under its trade mark system. (6)
Article 15.22. Rights Conferred
Each Party shall provide that the owner of a registered trade mark has the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trade mark is registered where such use would result in a likelihood of confusion. In the case of the use of an identical sign for identical goods or services a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of each Party making rights available on the basis of use.
Article 15.23. Exceptions
A Party may provide limited exceptions to the rights conferred by a trade mark, such as fair use of descriptive terms, provided that those exceptions take account of the legitimate interests of the owner of the trade mark and of third parties.
Article 15.24. Well-Known Trade Marks
Each Party shall provide for the protection of well-known trade marks as referred to in Article 6bis of the Paris Convention and paragraphs 2 and 3 of Article 16 of the TRIPS Agreement. Each Party recognises the importance of the Joint Recommendation Concerning Provisions on the Protection of Well-Known Marks adopted by the Assembly of the Paris Union for the Protection of Industrial Property and the General Assembly of WIPO at the Thirty-Fourth Series of Meetings of the Assemblies of the Member States of WIPO, 20 to 29 September 1999.
Article 15.25. Procedural Aspects of Examination, Opposition and Cancellation
Each Party shall provide a system for the examination and registration of trade marks which includes among other things:
(a) communicating to the applicant in writing, which may be by electronic means, the reasons for any refusal to register a trade mark;
(b) providing the applicant with an opportunity to respond to communications from the competent authorities, to contest any initial refusal, and to make a judicial appeal of any final refusal to register a trade mark;
(c) providing an opportunity to oppose the registration of a trade mark and an opportunity to seek cancellation (7) of a trade mark through, at a minimum, administrative procedures; and
(d) requiring administrative decisions in opposition and cancellation proceedings to be reasoned and in writing, which may be provided by electronic means.
Article 15.26. Bad Faith Applications
Each Party shall provide that its competent authority has the authority to refuse an application or cancel a registration where the application to register the trade mark was, according to its laws and regulations, made in bad faith.
Article 15.27. Electronic Trade Marks Systems
Further to Article 15.9 (Transparency), each Party shall provide:
(a) a system for the electronic application for, and maintenance of, trade marks; and
(b) a publicly available electronic information system, including an online database, of trade mark applications and of registered trade marks.
Article 15.28. Term of Protection for Trade Marks
Each Party shall provide that initial registration and each renewal of registration of a trade mark is for a term of no less than 10 years.
Article 15.29. Efforts Toward the Harmonisation of Trade Mark Systems
The Parties recognise the importance of reducing differences in law and practice between the Parties' respective systems for the protection of trade marks. In addition, each Party shall endeavour to participate in international trade mark harmonisation efforts, including the WIPO fora dealing with reform and development of the international trade mark system.
Article 15.30. Domain Names
1. In connection with each Party's system for the management of its country- code top-level domain (ccTLD) domain names, the Parties recognise the benefits of appropriate remedies being available at least in cases in which a person registers or holds, with a bad faith intent to profit, a domain name that is identical or confusingly similar to a trade mark.
2. The Parties understand that those remedies may, but need not, include, among other things; revocation, cancellation, transfer, damages, or injunctive relief.
Section D. Geographical Indications
Article 15.31. Procedures for the Recognition and Protection of Geographical Indications
1. The Parties recognise that geographical indications may be protected through a trade mark or sui generis system, or other legal means.
2. In providing recognition and protection for geographical indications each Party shall:
(a) provide transparent recognition and protection procedures which are readily available and understandable to the public;
(b) accept applications or petitions for recognition and protection without requiring intercession by a Party on behalf of its nationals;
(c) provide an administrative process to verify that a term being proposed for protection meets the relevant requirements as set out in the laws and regulations of that Party;
(d) publish the geographical indication proposed for recognition and protection;
(e) provide procedures to object to recognition and protection and for recognition and protection to be refused or otherwise not afforded. The grounds of objection shall include the following:
(i) the proposed geographical indication conflicts with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the good; or
(ii) the proposed geographical indication is the term customary in common language as the common name for the good concerned in the territory of that Party; and
(f) provide procedures for the cancellation (8) or invalidation of recognition and protection.
Article 15.32. System and Standard of Protection for Geographical Indications
1. If Australia enters into an international agreement with a non-party that:
(a) enters into force after the date this Agreement is signed by both Parties; and
(b) includes obligations (9) concerning a system or standard of protection for geographical indications for spirits, agricultural products or foodstuffs that is different to that in effect in Australia upon entry into force of this Agreement, that system or standard being "a new standard of protection", (10)
the Parties shall enter into consultations as soon as reasonably practicable after the date of entry into force of the non-party agreement and no later than four months after the date of that event, to review this Section with a view to amending this Agreement so that no less favourable treatment is applied under this Section in relation to the protection of geographical indications. That review shall be undertaken through the IPR Committee pursuant to Article 15.15 (Committee on Intellectual Property Rights).
2. If this Agreement had not yet entered into force by the date the Parties would otherwise have been required to enter into consultations pursuant to paragraph 1, the Parties shall enter into consultations as soon as reasonably practicable after the date of entry into force of this Agreement, and no later than four months after the date of that event, to review this Section with a view to amending this Agreement so that no less favourable treatment is applied under this Section in relation to the protection of geographical indications. That review shall be undertaken through the IPR Committee pursuant to Article 15.15 Committee on Intellectual Property Rights).
Article 15.33. Protection of Geographical Indications
If Australia enters into an international agreement with a non-party that enters into force after the date this Agreement is signed by both Parties, and that protects specific geographical indications for spirits, agricultural products or foodstuffs to a new standard of protection then:
(a) the United Kingdom may provide to Australia a list of specific geographical indications for spirits, agricultural products and foodstuffs that it seeks to be protected in Australia;
(b) Australia shall examine and publish for opposition those geographical indications under its domestic requirements as soon as reasonably practicable following receipt of the United Kingdom's list;
(c) in accordance with this Section, and subject to those geographical indications satisfying Australia's domestic requirements for the protection of a geographical indication to the new standard of protection, Australia shall protect those geographical indications to the new standard of protection; and
(d) the Parties shall then enter into consultations as soon as reasonably practicable following Australia's examination and objections process relating to the list of United Kingdom geographical indications under its domestic requirements and no later than four months after the date of that event, to consider amendments to this Agreement, with a view to including a list in an Annex to this Agreement to indicate the United Kingdom geographical indications which are protected in Australia. That review shall be undertaken through the IPR Committee pursuant to Article 15.15 (Committee on Intellectual Property Rights).
Article 15.34. Consultations on Geographical Indications
If, no later than two years following the date of entry into force of this Agreement, an agreement meeting the criteria described in Article 15.32 (System and Standard of Protection for Geographical Indications) has not entered into force, the Parties shall review this Section with a view to considering further provisions governing the protection or recognition of geographical indications. Such a review shall consider the Partiesâ interests and sensitivities concerning the protection of geographical indications for spirits, agricultural products, and foodstuffs. That review may be undertaken through the IPR Committee pursuant to Article 15.15 (Committee on Intellectual Property Rights).
Article 15.35. Amendments Relating to Geographical Indications
Amendments relating to geographical indications shall enter into force in accordance with Article 32.2 (Amendments - Final Provisions).
Section E. Patents and Data
Article 15.36. Rights Conferred
1. A patent shall confer on its owner the following exclusive rights:
(a) where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of making, using, offering for sale, selling, or importing for these purposes that product;
(b) where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
Article 15.37. Patentable Subject Matter
1. Subject to paragraphs 2 and 3, each Party shall make patents available for any invention, whether a product or process, in all fields of technology, provided that the invention is new, involves an inventive step and is capable of industrial application. (11)
2. A Party may exclude from patentability inventions, the prevention within its territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by its law.
3. A Party may also exclude from patentability:
(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.
Article 15.38. Exceptions
A Party may provide limited exceptions to the exclusive rights conferred by a patent, provided that those exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.
Article 15.39. Experimental Use
Without limiting Article 15.38 (Exceptions), each Party shall provide that any person may do an act that would otherwise infringe a patent if the act is done for experimental purposes relating to the subject matter of a patented invention.
Article 15.40. Regulatory Review Exception
Without prejudice to the scope of, and consistent with, Article 15.38 (Exceptions), each Party:
(a) shall provide that a third person may do an act that would otherwise infringe a patent with respect to a pharmaceutical product invention if the act is done for purposes connected with obtaining regulatory approval (12) in that Party or another country or both; and
(b) may provide that a third person may do an act that would otherwise infringe a patent with respect to all other types of invention if the act is done for purposes connected with obtaining regulatory approval in that Party or another country or both.
Article 15.41. Other Use without Authorisation of the Right Holder
The Parties understand that nothing in this Chapter shall limit a Party's rights and obligations under the TRIPS Agreement to authorise use of a patent.
Article 15.42. Patent Filing
Each Party shall provide that if an invention is made independently by more than one inventor, and separate applications claiming that invention are filed with, or for, the relevant authority of the Party, that Party shall grant the patent on the application that is patentable and that has the earliest filing date or, if applicable, priority date, unless that application has, prior to publication (13), been withdrawn, abandoned or refused.
Article 15.43. Amendments, Corrections and Observations
1. Each Party shall provide a patent applicant with at least one opportunity to make amendments, corrections and observations in connection with its application.
2. Each Party shall not revoke or invalidate a patent, either totally or in part, without the patent owner being given the opportunity to make observations on the intended revocation or invalidation, and to make amendments and corrections where permitted under a Party's law within a reasonable time limit.
3. A Party may provide that amendments made pursuant to paragraph 1 or 2 do not go beyond the scope of the disclosure of the invention, as of the filing date.
Article 15.44. Publication of Patent Applications
1. Recognising the benefits of transparency in the patent system, each Party shall publish unpublished pending patent applications promptly after the expiration of 18 months from the filing date or, if priority is claimed, from the earliest priority date.
2. If a pending application is not published promptly in accordance with paragraph 1, a Party shall publish that application or the corresponding patent, as soon as practicable.
3. Each Party shall provide that an applicant may request the early publication of an application prior to the expiration of the period referred to in paragraph 1.
Article 15.45. Information Relating to Published Patent Applications and Granted Patents
For published patent applications and granted patents, and in accordance with the Party's requirements for prosecution of such applications and patents, each Party shall make available to the public at least the following information, to the extent that such information is in the possession of the competent authorities and is generated on, or after, the date of the entry into force of this Agreement:
(a) search and examination results, including details of, or information related to, relevant prior art searches;
(b) as appropriate, non-confidential communications from applicants; and
(c) patent and non-patent related literature citations submitted by applicants and relevant third parties.
Article 15.46. Conditions on Patent Applicants
Each Party shall require an applicant for a patent to disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art.
Article 15.47. Extension of the Duration of Rights Conferred by a Patent
1. The Parties recognise that pharmaceutical products protected by a patent in their respective territories may be subject to an administrative authorisation procedure before being put on their respective markets. With respect to a pharmaceutical product (14) that is subject to a patent, each Party shall make available either:
(a) an adjustment of the patent term; or
(b) a period of additional sui generis protection conferring the rights conferred by the patent,
to compensate the patent owner for reduction (15) of the effective patent term as a result of the marketing approval process.
2. For greater certainty, in implementing the obligations of this Article, each Party may provide for conditions, limitations, waivers and exceptions provided that the Party continues to give effect to this Article.
Section F. Undisclosed Test or other Data
Article 15.48. Protection of Undisclosed Test or other Data for Agricultural Chemical Products
If a Party requires, as a condition for granting marketing approval for an agricultural chemical product that utilises a new active substance, the submission of undisclosed test or other data, that Party shall not permit third persons, without the consent of the person that previously submitted that information, to place on the market the same or a similar product on the basis of:
(a) that information; or
(b) the marketing approval granted to the person that submitted that information,
for at least 10 years from the date of marketing approval of the previously approved agricultural chemical product; such date to be determined in accordance with each Party's law. (16) (17)
Article 15.49. Protection of Undisclosed Test or other Data for Pharmaceutical Products
1. If a Party requires, as a condition for granting marketing approval for a new pharmaceutical product, the submission of undisclosed test or other data concerning the safety or efficacy or quality of the product, that Party shall not permit third persons, without the consent of the person that previously submitted that information, to place on the market the same or a similar (18) product on the basis of:
(a) that information; or
(b) the marketing approval granted to the person that submitted that information,
for at least five years from the date of marketing approval of the previously approved pharmaceutical product, such date to be determined in accordance with each Party's law.
2. For the purposes of this Article, a new pharmaceutical product is one that does not consist of or contain an active substance that has previously been approved for marketing in the Party. (19)
Section G. Registered Industrial Designs
Article 15.50. Protection of Registered Industrial Designs
1. Each Party shall provide for the protection of independently created registered industrial designs that are new or original. This protection shall confer an exclusive right upon their holders in accordance with this Article.
2. A Party may provide limited exceptions to the protection of registered industrial designs in a manner consistent with Article 25 and paragraph 2 of Article 26 of the TRIPS Agreement.
3. Each Party shall ensure that an owner of a protected registered industrial design has at least the right to prevent third parties not having the owner's consent from making, offering for sale, selling, importing, or using articles bearing or embodying a design which is a copy, or substantially a copy, of the protected registered industrial design when such acts are undertaken for commercial purposes.
Article 15.51. Duration of Protection
Each Party shall ensure that the total term of protection available for registered designs is no less than 10 years.
Article 15.52. Multiple Design Applications
Each Party shall provide a system for the registration of industrial designs which allows for two or more designs to be registered through the filing of one application.
Article 15.53. Improving Industrial Design Systems
The Parties recognise the importance of improving the quality and efficiency of their respective industrial design registration systems.
Article 15.54. International Classification System for Industrial Designs
Each Party shall endeavour to use a classification system for industrial designs that is consistent with the Locarno Agreement.
Article 15.55. International Registration of Industrial Designs
Each Party shall make all reasonable efforts to accede to the Hague Agreement, if it is not already party to it.