As previously reported here, from 1 January 2026, Australia’s mandatory merger notification regime will place a structural weight on transactions that previously moved in the dark, including acquisitions anchored in patents, software, licences and other forms of intellectual property (IP).
In the Australian Competition and Consumer Commission’s (ACCC’s) interim guidance, released on 1 December 2025,[1] is a quiet pressure valve: the merger notification waiver. A mechanism that allows certain acquisitions to bypass full notification, even if thresholds are met. This is the first sign that the regime has texture – that not every threshold-triggering deal must endure the full grind.
What a waiver really means
A waiver is not a shortcut or a shield. It is not a clearance. It is a recognition that some deals are structurally incapable of meaningfully affecting competition.
When granted, it releases parties from the mandatory notification obligation. However, section 50 of the Competition and Consumer Act 2010 (Cth) (CCA), which prohibits the direct or indirect acquisition of shares or assets where the acquisition would have, or be likely to have, the effect of substantially lessening competition in any market, continues to apply. The ACCC retains the right to act if the deal would substantially lessen competition.
Where waivers sit and where they don’t
The guidance makes one thing clear: waivers are reserved for transactions unlikely to move a market.
Typical candidates look like this:
- negligible or no competitive overlap;
- small combined shares in tightly defined markets;
- simple acquisitions with no vertical, portfolio or conglomerate pressure points; or
- transactions where the competitive story is uneventful.
In short: if the deal cannot alter market dynamics, a waiver might move it through the system.
Conversely, complex markets, credible overlaps, acquisitions with pipeline competitors, or deals with even a hint of structural effect are not waiver material. Case-by-case assessment is the rule. No presumptions, no shortcuts.
The mechanics of a waiver
Under the interim guidance:
- Waivers must be sought via the ACCC’s online Acquisitions Portal.
- A fee applies (A$8,300), with small business concessions available.
- The ACCC has 25 business days to decide. If a decision cannot be reached, the default is refusal.
- Every decision, whether granted or refused, is published on the Acquisitions Register.
Importantly, a waiver is not clearance. It simply releases the parties from the mandatory notification requirement. Where a transaction could still substantially lessen competition, the ACCC can intervene at any stage.
Implications for IP transactions
For IP-rich deals – patent roll-ups, software acquisitions, platform integrations, hybrid licensing structures – waivers introduce a new strategic question: is the asset actually capable of influencing market structure?
If not, a waiver might spare parties from delay, cost and regulatory engagement. If yes, a full notification is unavoidable and strategically safer.
Valuation and strategic assessment
Valuation is central to IP deals – not just as a financial exercise, but as a lens to assess market influence. Minor portfolios, non-competing patents, or complementary IP may justify a waiver. High-value patents, platform integrations, or serial acquisitions require full notification. Valuation helps businesses determine whether a waiver fast-lane is realistic or if full regulatory scrutiny is strategically prudent.
Key implications for IP-driven transactions
- Low-risk assets now have a potential exit route. Minor portfolios, non-competing patents, and complementary IP may qualify.
- Documentation, transparency, and valuation still matter. Waiver activity is recorded on the Acquisitions Register, increasing visibility to competitors, investors, and the market.
- Waiver ≠ immunity. A granted waiver does not shield the deal from later challenge under s 50 of the CCA and potential ACCC intervention.
For businesses used to treating IP transactions as low-touch, this represents a significant shift. Early recognition of waiver eligibility, or the lack thereof, will influence timing, integration, and competitive strategy.
A tool, not a loophole
The ACCC’s waiver regime introduces nuance into new mandatory merger notification framework. For the right transaction, it can offer efficiency and clarity. For transactions with even modest competitive effects, full notification remains unavoidable.
Waivers highlight that not all IP deals are equal in the eyes of regulators. Executives must understand which assets carry structural influence and which do not. In the new Australian mandatory notification era, strategic foresight will distinguish seamless transactions from costly interruptions.
[1] ACCC, Merger Notification Waivers: Interim Guidance (1 December 2025) <accc.gov.au/system/files/merger-notification-waivers-interim-guidance-1-dec-2025.pdf>.