The High Court has allowed the Northern Territory’s appeal against the finding that it infringed the Collinses’ patent under section 117 of the Patents Act 1990 (Cth) by granting a statutory licence to ACOG to harvest certain trees from Crown land. It was alleged ACOG then used oil extracted from the trees to make blue cypress oil by a process protected by the Collinses’ patent.
From a quick skim of the judgments (there are several), it appears that the Northern Territory escaped liability because the trees were a staple commercial product and so it was necessary to show that the Northern Territory had given instructions or inducements to use the product by means of the patented process (not merely ‘facilitated’ it).
It also looks like the High Court rejected the Northern Territory’s argument that Rescare set out the correct interpretation of s 117; not Bristol-Myers Squibb v Faulding.
Northern Territory v Collins [2008] HCA 49.
