Last week, King & Wood Mallesons attended the annual conference of the Licensing Executives Society Australia & New Zealand to hear Parnos Munyard, the ACCC’s Director of Advocacy & Law Reform, discuss the repeal of the section 51(3) IP exemption to the Competition and Consumer Act 2010. For the background to the repeal of this exemption, see our previous post here.
In an eagerly anticipated presentation, Mr Parnos set the scene by reminding attendees that prior to its repeal, the exemption was restricted to limited forms of IP rights and anti-competitive conduct. Mr Parnos also explained that the ACCC’s default position is that licensing IP rights, and commercialising new technologies, is pro-competitive because it encourages competition and innovation.
Mr Parnos suggested that businesses needed to review their existing agreements prior to 13 September 2019 and ask themselves two questions:
- Is this agreement a cartel agreement? (For example, does it purport to fix or set prices at a particular level?)
- Will the agreement substantially lessen competition?
If the answer to either of these questions is yes, the agreement might contravene the Act and should be redrafted.
The ACCC is going to release draft guidelines in June 2019 and is encouraging businesses to liaise with the Commission to help it to refine the guidelines. We understand that the guidelines will contain a number of examples of the sorts of arrangements that might, in the ACCC’s view, contravene the Act.
We will keep you posted on the guidelines when they are released by the ACCC. In the meantime, contact our team if you want to discuss what your business should be doing prior to 13 September 2019.
This post was prepared by James Ellsmore, a Senior Associate in the IP Dispute Resolution team of King & Wood Mallesons.