"The case is very relevant to people who provide components or products that will be used in an infringing manner", according to Kim O'Connell, a partner of Mallesons Stephen Jaques in Sydney.
Vincent Collins owns 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
".
He claimed that the Northern Territory engaged in contributory infringement by granting a licence to Australian Cypress Oil Company (ACOC) to take the cypress trees from Crown land in 1998. ACOC was allegedly using the trees to produce the oil in a way that infringed the patent.
Section 117(2)(b)
of Australia's Patents Act states that contributory infringement can only occur
"
if the product is not a staple commercial product".
In September 2007 the Full Federal Court overturned a Federal Court decision that the trees were a "staple commercial product" and would therefore be exempt from contributory infringement. The Full Court said they were not a staple product, and the licence for the trees amounted to a supply.
On October 16 the High Court
overturned
this ruling. O'Connell told
Managing IP
that paragraphs 43, 50 and 145 are the important parts of the decision on what is defined as a staple commercial product.
In paragraph 50. Justice Hayne states:
If it [a product] is in fact supplied commercially for various uses, it is a staple commercial product and the supplier of such a product is not to be held liable as an infringer because the person to whom the product is supplied uses it in a way that infringes, even if the supplier has reason to believe that it may be used in that way.
Clayton Utz Lawyers acted for the Northern Territory government in this case, while De Silva Hebron advised Collins.
An article in the
Tuesday edition
of the
AIPPI Daily News
in September looks at the issue of contributory patent infringement in more depth.
