It seems that the Federal Court is not the only one to take issue with the current conduct of IP litigation in Australia.
The report of the Review of the National Innovation System âVenturous Australia – building strength in innovationâ includes a section headed âThe costs of enforcing IP rightsâ. The reportâs solution to the perceived problem of such costs takes the form of Recommendation 7.4 that âFirms asserting or defending intellectual property should have a right to opt out of âappellate double jeopardyâ.â
The proposal effectively provides that any party may elect not to appeal the first instance decision unless it funds the costs of both itself and the other parties in doing so. If any party makes such an election, all parties would be bound by it. How this proposal is intended to âlevel the playing field ⦠between large and small firmsâ is unclear, given that such an election would effectively mean that only large firms (having sufficient funds) could appeal an unfavourable decision.