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Contributory patent infringement considered

Joe Mok, Stephanie Patterson and David Clark of Blake Dawson report on Collins v Northern Territory [2007] FCAFC 152 and highlight the alternative cause of action for contributory infringement when it is difficult or impractical to take action against a direct infringer:

  • By majority, the Court decided that the grant of a licence can amount to “supply”, within the meaning of section 117. Of course, whether a particular licence will amount to “supply” will depend on the terms of that licence.
  • The majority of the Court has also provided guidance on the meaning of “staple commercial product”. All the judges on appeal noted that, prior to this case, there was virtually no authority on the meaning of this phrase. From the judgments of the four judges who considered the issue in this case, it seems that the relevant considerations will be, first, whether the product has multiple uses and secondly, how readily available the product is.
  • The Collins decision highlights the alternative cause of action for contributory infringement when it is difficult or impractical to take action against a direct infringer. For example, it may be more cost effective for a patentee to sue a supplier (rather than multiple end users) where a product is supplied for what later will constitute an infringing use.

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