Australian courts have recently adopted a restrictive reading of the extra territorial operation of Australian patents.
In Load and Move Pty Ltd v Container Rotation Systems Pty Ltd [2016] FCA 843, the plaintiff owned a patent directed to a container rotation system. It sued the defendants, alleging infringement of the patent. The infringement allegation was peculiar. It alleged the defendants had contracted for the foreign manufacture in China of a container rotation system which was to be supplied to Eritrea. Thus the system was never going to enter the Australian territory, even though the supply was being orchestrated from Australia.
The judge refused to grant preliminary discovery and to entertain an infringement finding. As the contract for manufacture and sale was to be performed totally outside the jurisdiction, there was no exploitation of the patent for the purposes of infringement.
The case points to a restrictive reading by the Australian judiciary of the territorial operation of Australian patents. Given the rapid development of internet-type sales channels, this is perhaps unfortunate, as it may allow the effective exploitation of patent rights by Australian entities, provided that exploitation occurs wholly outside the country.
Peter Treloar |
Shelston IP
Level 21, 60 Margaret Street
Sydney NSW 2000, Australia
Tel: +61 2 9777 1111
Fax: +61 2 9241 4666
