Australia is undergoing significant transformation of its merger control regime, with sweeping reforms set to impact all sectors. Several of the changes have important implications for intellectual property (IP) transactions and will require IP practitioners and IP asset holders to revise how they approach commercialisation.
What you need to know at a glance
Notification of acquisition: From 1 January 2026, all “acquisitions of assets” meeting the relevant thresholds must be notified to the Australian Competition & Consumer Commission (ACCC) and cannot be put into effect until cleared. “Acquisitions of assets” will include acquisitions of intangible assets, such as assignments of IP rights, licences of IP, options over IP, acquisitions of royalty streams, and other contract rights in respect of IP.
Patents no longer considered ordinary course: The “ordinary course of business” exception, which otherwise allows routine business activity to avoid being classed as an acquisition now expressly excludes patents. All patent acquisitions must be tested against the notification thresholds.
Notification thresholds: The new regime applies to acquisitions of IP assets where the asset is used in an Australian business, and certain monetary thresholds are met. For most transactions, notification is required if:
The combined Australian revenue of the parties to the transaction (including related bodies corporate and connected entities of the buyer) is at least $200 million, and either the revenue attributable to the assets being acquired is at least $50 million, or the global transaction value is at least $250 million.
For very large acquirers (Australian revenue over $500 million), notification is triggered if the revenue attributable to the assets being acquired is at least $10 million.
Serial acquisitions are also captured, with a three-year look-back for previous acquisitions of the same or substitutable/competitive goods or services that cumulatively meet the above thresholds.
Filing fees: The new system introduces significant official filing fees, with a Phase 1 notification costing $56,800 and additional fees for more complex (Phase 2) reviews, ranging from $475,000 to $1,595,000 depending on transaction size. There is an additional fee of $401,000 for an application based on public benefits (Phase 3).
Upfront information requirements: Acquirers of assets in notifiable transactions will need to provide significant information and documentation upfront to the ACCC, including information about the parties, the transaction, prior transactions, the relevant markets and competitive effects (for example, market shares), competitor and customer contact details, as well as transaction documents. For more details on the upfront requirements, see our update on the ACCC’s process for the new merger regime.
Assessment criteria: The ACCC will clear the transaction unless it is satisfied the transaction has or is likely to have the effect of substantially lessening competition in any market, which may include cases where a merger creates, strengthens or entrenches market power. It is also possible for parties to raise public benefit arguments if the ACCC has competition concerns after completing Phase 1 and 2 of the review.
Consequences are severe: A failure to notify the ACCC of a notifiable acquisition of assets will render it void, regardless of ACCC involvement, and may expose parties to significant penalties and enforcement (including injunctions and divestiture).
What the merger reforms mean for IP
The changes introduced by the merger reforms mean that many licences or assignments will now be the subject of merger clearance. This is not something that is usually contemplated in the context of IP licensing or assignment and will need to be considered from the outset.
IP is squarely in scope: To give a sense of the types of IP transactions that could be notifiable under the new merger reforms:
Assignments or licences for patents, trade marks, copyright (including software), designs or plant breeders’ rights that drive material revenue, to the extent this is not ordinary course (or relates to patents).
Settlements of high value IP disputes that involve an assignment or licence of the relevant rights.
Transfers of well-known brands, brand portfolios or brand consolidations, pharma/biotech asset purchases, and data-rich software platforms with significant licence revenues.
JV, collaboration and R&D contracts that create new, valuable IP (new rights can be caught by the $250 million value test even without turnover).
Serial roll-ups of related IP (for example, acquisition of a series of similar patents or competitive technologies) within three years.
Patents require special care: The ordinary-course exception does not apply to patents. Test every patent assignment or licence against the thresholds to determine whether notification is required.
Impact on standing to sue: An acquirer or licensee involved in a notifiable transaction that failed to notify would no longer have standing to sue a third party for IP infringement, because it would not have validly acquired or been granted the rights, i.e. the transaction was void.
Transparency of notification: Key facts relating to all notified transactions are placed on the ACCC’s public register. This will provide insight into acquisition activities of major companies. It will also allow third parties to determine whether a transaction that should have been notified was, in fact, notified.
What you should be doing
Screen early for thresholds: Map connection to Australia, parties’ Australian revenue, target/asset revenue, transaction value and three‑year acquisition history. Additionally, assess value against the $250m test to determine if ACCC notification may apply.
Build a methodology: The notification requirement hinges on the notification threshold. For IP this remains somewhat ambiguous. You should seek advice on an appropriate methodology to allocate revenue “attributable to the asset” (such as SKU/brand/product-level revenue, royalty streams, segment reporting). This will assist in determining application of the ACCC reforms to your IP agreements.
Identify high-risk asset types: You should take stock of all your core IP assets. This should cover high value patents, know-how, trade marks, core software/codebases or other material IP. Treat patents as always in-scope for threshold testing, even if acquired “in the ordinary course”.
Structure and draft for the regime: For notifiable transactions, consider including ACCC m”erger clearance as a condition precedent with long‑stop dates reflecting Phase 1/Phase 2 and potential extensions; cooperation/efforts covenants; information undertakings; split filings where relevant. Similarly, avoid pre-closing integration and “gun-jumping” in technology/IP integration plans, licence-back arrangements, transition services and data sharing.
Budget for fees: Notification will become more prevalent and you will need to build filing fees and potential Phase 2 costs and delays into deal models for more contentious transactions. This may be priced into future royalties or upfront licence fees depending on the nature of the transaction.
Transparency: Plan for prescriptive upfront information and public disclosure on the ACCC register.
Manage serial acquisition risk: Maintain a central register of IP/brand acquisitions for the 3‑year lookback period and be ready to assess turnover and values of aggregate “competitive” assets.
How we can help you manage IP risks under merger reforms
Our IP team, working closely with our Competition, Consumer and Market Regulation colleagues, can:
Rapid-screen IP and contractual rights for notification risk, including assisting in valuation of newly created rights and turnover attribution for pre-existing rights.
Design and negotiate IP commercialisation agreements in a way that ensures compliance, for example, including appropriate conditions precedent in transaction documents.
Assist with training for internal IP managers, technology transfer officers and executives.
Build internal playbooks for serial IP acquisitions and three‑year lookback compliance.
Keep you up to date on any changes to the regime, including the recently announced updates to the regime (details pending at time of publication).