POF - Northern Territory v Collins

Virginia Beniac-Brooks of Phillips Ormonde Fitzpatrick reviews the High Court (Gummow ACJ, Kirby, Hayne, Heydon and Crennan JJ) decision of Northern Territory v Collins [2008] HCA 49 concerning the “contributory infringement” provision of the Patents Act 1990 (Cth). In four separate concurring judgments (Gummow ACJ and Kirby J issued a joint judgment) the Court overturned the Full Federal Court’s decision and held that the timber of Callitris intratopica a “staple commercial product” and as such the conduct of the appellant, the Northern Territory Government, did not fall within the scope of section 117(2)(b) of the Act.

While the findings in relation to the timber being a staple commercial product were by themselves sufficient to dispose of the appeal, Virginia Beniac-Brooks writes that it is unfortunate that only two judges of the Court (Hayne and Crennan JJ) gave any real consideration to the construction of s 117 and its applicability to patented methods or processes. Unfortunately, the question of whether s 117 has any operation for patented methods or processes remains largely unanswered.

Phillips Ormonde & Fitzpatrick - The Jury is still out on whether section 117 applies to patented methods or processes