A new bill going through the Australian Parliament will allow Australian companies to obtain compulsory licences to manufacture and export medicines to developing countries experiencing a health crisis. The (Australian-based) generic manufacturer will need to apply to the Federal Court of Australia and demonstrate that there is a genuine health crisis, such as tuberculosis, malaria or HIV/AIDS, and that the country concerned has no adequate facilities for producing the (patented) product. Experience in other countries shows that the provisions will be rarely, if ever used. In the past twenty or so years, for example, in Germany only one compulsory licence was initially granted.
Normally the patent proprietor and the generics manufacturer come to an agreement – with the Damocles sword of a compulsory licence hanging over their heads. Indeed that is what happened in Germany – the parties agreed on a licence in the end.