Australia is set to overhaul its merger control framework with the introduction of a mandatory and suspensory notification regime, effective from 1 January 2026. This significant reform, established under the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth) (2024 Act), will be implemented primarily through updates to the Competition and Consumer Act 2010 (Cth) (CCA) and related subordinate legislation, including the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth).[1] These changes will have profound implications across various sectors, particularly for intellectual property (IP) transactions.
For decades, licences, assignments and collaboration were the unseen machinery of innovation. They moved quietly, shaping markets, building brands, and rewarding creativity. Until now, mergers and IP largely operated in separate spheres, with IP rarely taking centre stage in merger review. The upcoming reforms mark a significant departure: for the first time in Australia, IP transactions will be formally scrutinised under merger law. For practitioners and asset holders, patents, trade marks, copyright, and designs must now be managed, structured, and cleared with regulatory oversight in mind. What was once ordinary may now be extraordinary in the eyes of the Australian Competition and Consumer Commission (ACCC).
IP in the crosshairs
The reforms redefine acquisitions of assets to include intangible property such as IP rights, licences, options, and royalty streams.[2] This signals a broader recognition that IP is not merely a legal right but a strategic instrument of market power. Historically, IP transfers were often treated as routine commercial activity, with minimal regulatory oversight. The new framework eliminates that comfort, particularly for patents, which are now expressly always in scope.
This is a conceptual shift: the ACCC no longer treats IP deals as background mechanics of commerce. They are potential levers of competition, capable of influencing market access, entrenching dominant players, and shaping the competitive landscape even without a traditional merger.
Market power meets merger law
Several factors converge to explain this policy pivot. Industries such as information technology, biotech, and pharmaceuticals increasingly rely on serial acquisitions of patents and other IP, consolidating rights that confer indirect market power. Licensing structures and royalty arrangements can effectively restrict competition, while software and data platforms can extend influence across sectors.
From an economic perspective, these changes reflect a recognition that intangible assets can concentrate economic power in ways that traditional market share metrics do not capture. The accumulation of key patents, proprietary platforms, or well-known brands can create entry barriers for competitors, distort pricing, or enable dominant firms to extract supra-competitive returns. In a knowledge-driven economy, the distribution of IP is a determinant of competitive dynamics, innovation incentives, and ultimately consumer welfare.
Globally, regulators are increasingly recognising the role of IP in shaping competition. In the European Union, the European Commission has scrutinised patent and technology transfers within merger reviews, particularly in pharmaceuticals, biotechnology, and software, where the aggregation of key patents can create barriers to entry or restrict follow-on innovation. Licensing arrangements, cross-licences, and patent pooling have also drawn attention, as they can subtly shift market power even absent a traditional merger. Similarly, in the United Kingdom, the Competition and Markets Authority has focused on IP-rich digital markets, including software platforms, data services, and online marketplaces, highlighting how control over proprietary technology, exclusive access to data, and licensing restrictions can foreclose competition or entrench dominant positions even where no firm holds a traditional majority market share. Across the United States, the Federal Trade Commission has emphasised the anticompetitive potential of patent portfolios and exclusive licensing in high-tech sectors, actively challenging serial acquisitions of patents that, while individually minor, cumulatively reduce competitive tension or limit market entry. Collectively, these actions reflect a global understanding that IP is a strategic lever of market power, requiring oversight that extends beyond conventional merger thresholds to the aggregation of intangible assets.
Australia’s approach, codified in the 2024 Act, aligns closely with these global trends. By explicitly bringing IP into the ambit of mandatory and suspensory merger notification, the reforms signal that the accumulation of patents, trade marks, copyright, and other IP is no longer peripheral to competition policy. Instead, IP is recognised as a central determinant of market structure, competitive dynamics, and innovation incentives, elevating its regulatory significance to match that of tangible assets in merger assessments.
Thresholds and transparency
Before 2026, only large-scale corporate mergers with clear revenue impact triggered mandatory notification. IP assignments were often incidental to broader deals or treated as routine commercial activity. Now, notification thresholds capture transactions based on asset value or revenue, with provisions for very large acquirers and for designated classes of acquisitions that the ACCC may require to be notified regardless of thresholds.[3] Even if thresholds are not met, the general prohibition under section 50 of the CCA continues to prohibit acquisitions that would substantially lessen competition, meaning parties should still consider voluntary notification for transactions with potential competitive effects.
The reforms also introduce public transparency, requiring all notified transactions to appear on the ACCC register.[4] Historically, IP transfers were largely private, leaving competitors and the market unaware of consolidations. Now, acquisition strategies, patent roll-ups, and brand consolidations will be visible, influencing competitive behaviour and signalling strategic intent.
The key thresholds, fees, and requirements under the new regime are summarised as follows.
Summary of ACCC notification thresholds and requirements
| Pre-2026 Practice | 2026 Reforms | |
| Scope | Often limited. IP usually incidental or treated as ordinary course. | Patents always in scope. Other IP assessed against thresholds. Pre-closing integration risks gun-jumping. |
| Notification | Generally voluntary. Only large-scale mergers. | Mandatory and suspensory. Cannot complete transaction without ACCC clearance. |
| Monetary Thresholds | N/A | Most deals require review if:
– Combined Australian revenue ≥ AUD$200 million and asset revenue ≥ AUD$50 million, or – Global transaction value ≥ AUD$250 million. Very large acquirers: asset revenue threshold drops to AUD$10 million. |
| Fees | Minimal for IP transfers. | Phase 1: $56,800.
Phase 2: $475,000–$1,595,000. Phase 3: $401,000 for public benefit submissions. |
| Transparency | Generally private. Limited public reporting. | All notified transactions listed on ACCC public register. |
| Penalties | Limited, mainly for large mergers. | Failure to notify renders transaction void, potential civil penalties, and loss of standing to enforce IP. |
Reconsidering the ordinary
Previously, businesses could assume that small or incremental acquisitions fell within the “ordinary course” of business and avoided scrutiny. That assumption is no longer viable. Even internal reorganisations, minority stakes, or routine patent deals may require notification, particularly where thresholds are met. This reflects a deeper regulatory philosophy: IP transactions are not judged by appearance or intention, but by potential competitive effect.
Serial acquisitions, once background activity, may now attract cumulative assessment. The law has shifted from reactive enforcement to anticipatory oversight: regulators are concerned not only with harm that has occurred but with harm that could arise from concentration of rights and access. Pre-closing integration, licence-back arrangements, or joint development without ACCC clearance risks “gun-jumping” – the execution of steps that put the parties in the position of controlling or benefiting from the assets before regulatory approval is obtained. Such conduct can render a transaction void and undermine the acquirer’s standing to enforce IP rights. Economically, the reforms recognise that IP aggregation can distort competitive incentives before market outcomes are visible, and that early intervention is preferable to remedying entrenched dominance ex post.
Three acts of oversight
Under the new regime, acquirers must provide the ACCC with comprehensive information upfront, including details about the parties, the transaction, prior acquisitions, relevant markets, competitor and customer contacts, and key transaction documents.[5] Historically, such requirements were minimal for IP deals, reflecting the assumption that assignments or licences did not materially affect competition. Now, this transparency ensures the ACCC can assess potential competitive effects before a transaction proceeds.
The ACCC’s review follows a three-phase process. Phase 1 screens the transaction for potential competition concerns. If issues arise, the acquisition moves to Phase 2, which involves a deeper assessment of market effects and competitive risks. Where residual concerns remain, parties may pursue Phase 3 to demonstrate that the transaction’s broader economic or social benefits outweigh any competition detriment.
Playbook for practitioners and IP asset-holders
The reforms necessitate proactive planning. High-value patents, software platforms, core brands, and proprietary know-how should be treated as always in scope. Transaction documentation must now incorporate ACCC clearance as a condition precedent, and care must be taken to avoid pre-closing integration that could constitute gun-jumping.
Revenue attribution, particularly for royalties or platform-based IP, will require careful methodology to determine whether notification thresholds are met. Serial acquisitions should also be tracked to ensure compliance with the three-year look-back period, which aggregates all acquisitions of the same or substitutable IP within the previous three years when assessing whether notification thresholds are triggered. This means that even smaller, incremental deals that were previously considered routine may now cumulatively meet the threshold, requiring ACCC review. Given the substantial fees for Phase 1 through Phase 3 filings and the potential delays in complex cases, deal planning, budgeting, and scheduling must account for regulatory timing.
From a market economics perspective, the reforms incentivise thinking not only about ownership and validity but also about the strategic deployment of IP, the pace of consolidation, and the cumulative influence of intangible assets on market entry and pricing. This shifts IP due diligence from a purely legal exercise to a broader strategic and economic assessment, linking regulatory foresight to competitive positioning and innovation potential.
Closing reflection
IP has long been the quiet currency of innovation. Australia’s 2026 merger reforms signal that it is also a vector of market power. The ordinary course of IP transactions no longer guarantees ordinariness in law. Every assignment, licence, or portfolio acquisition carries regulatory weight, and every IP deal now requires foresight, strategy, and vigilance. What was once a discreet transfer of rights may now define market dynamics, shape the incentives for innovation, and influence the structure of entire sectors.
[1] Australian Treasury, Fact Sheet: Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 (October 2024) 1 https://www.treasury.gov.au/sites/default/files/2024-10/p2024-592777-factsheet.pdf.
[2] Australian Treasury, Explanatory Memorandum: Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 (Exposure Draft, July 2024) [2.10].
[3] Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) s 1‑3, note 2; see also Competition and Consumer Act 2010 (Cth) s 51ABQ(1) (which empowers the Minister to require notification of certain classes of acquisitions even if thresholds are not met).
[4] Australian Competition and Consumer Commission, Acquisitions Register https://www.accc.gov.au/public-registers/mergers-and-acquisitions-registers/acquisitions-register (accessed 3 November 2025).
[5] Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth) s 6‑1.