A majority of the Full Federal Court recently extended the boundaries of contributory infringement in Australia.

In Collins v Northern Territory [2007] FCAFC 152, the Collins' owned a patent for "a process for producing a blue, guaiazulene-containing oil from a mixture of the bark and wood of the trees of the species Callitris intratropica". The Northern Territory government had granted a third party the right to extract trees from forestlands for the purpose of extracting the oil.

While the lower courts had held that the granting of a licence to extract the trees did not amount to contributory infringement under our legislation, a majority of the Full Federal Court reversed this opinion. The Court first reviewed the position on contributory infringement in the US and Europe and was, no doubt, influenced by decisions in these jurisdictions.

One core issue was whether the trees could be considered a "staple commercial product" and therefore fall under an exemption to our contributory infringement laws. The majority held they could not. Of particular influence in deciding that this exemption was unavailable was the licence condition that the relevant government department "undertook not to issue any other licence for harvesting of Callitris intratropica for oil extraction on land under its control for the period of the licence". The majority found that the licence was never granted to use the timber generally but rather for the particular purpose of extracting the oil.

This case demonstrates a consequential expansion of the bounds of contributory infringement in Australia.

Peter Treloar

Shelston IP
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