Damien English (Meath West, Fine Gael) | Oireachtas source

I thank the Deputy for his amendment. I understand its intent and I know what he is trying to achieve. We believe it is provided for but I will go through that. His proposal is to include a new so-called common good provision in the Patents Act 1992 to allow for the possibility of interference with intellectual property rights enjoyed by individuals or corporate entities in pursuance of the common good.

Patents are but one form of intellectual property rights, which term includes also copyright, trademarks, industrial designs, etc. The Constitution specifically recognises the importance of property, with Article 43 acknowledging the natural right to private ownership of external goods and "the State guarantees to pass no law attempting to abolish" this right of private ownership. As the Deputy said, however, in recognition of the principles of social justice, the Constitution provides that the State may, as occasion requires, delimit by law the exercise of such rights in the exercise of the common good.

At national, European and international level, intellectual property rights enjoy protection set down under well-established and respected principles. We have legislative acts at domestic level on trade marks, copyright, patents, industrial designs and so on. Equally, there is harmonisation at EU level in the area of trade mark and industrial design law and we have signed up to commitments to respect intellectual property rights.

At international level, the State is party to a number of international treaties and conventions that sign us up to a certain level of IP protection. These include the Paris Convention for the Protection of Industrial Property, dating from 1883, and the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPs agreement. The TRIPs agreement introduced intellectual property into the international trading system and remains the most comprehensive international agreement on intellectual property to date.

Whether at national, European or international level, IP protections are not, of themselves, absolute rights and states are permitted to apply derogations that allow for the suspension of part of the legal obligation which can operate to restrict some rights under certain circumstances, such as in the pursuit of broader compelling public policy reasons or for greater public interest considerations. Section 42 of the Patents Act 1992, which is itself being amended by the Bill, already limits the rights of patent holders in certain restrictive circumstances. Circumstances permitted include acts done privately for non-commercial purposes and acts done for experimental purposes on or into a patented invention.

I recognise Deputy Tóibín's amendment reflects the good faith intention to allow for the limitation by the State of intellectual property rights to achieve objectives for the common good. It is the case that there exists under the Constitution, and specifically in intellectual property legislation, the provisions to allow the State, if necessary and in particular circumstances, to delimit intellectual property rights. It would be wholly inappropriate and undesirable, however, to provide for the limitation of intellectual property rights on a blanket basis in a provision of the Patents Act. Existing provisions are set out that allow for the delimitation of rights in certain expressed circumstances in a manner the State can support without conflict with domestic, European or international obligations. As drafted, Deputy Tóibín's amendment goes beyond what is permitted and for this reason I cannot support his amendment. Given the rationale I have outlined, I hope Deputy Tóibín can agree to withdraw his amendment.

If the Deputy wishes I will provide him with a full briefing document prior to Report Stage. We feel it is quite well covered and that we can achieve the Deputy wants. We understand what he is trying to do but we believe it is already permitted under law and in the Constitution. The Department is very clear about what can be done and what the TRIPs agreement allows.