Site icon Duncan Bucknell

Yet another reason why Australian patent law needs reform

Q: Can you think of a jurisdiction that would require you to have your own patent covering your intended activities in order to have a court grant you a non-infringement declaration in relation to someone else’s patent?
A: Australia, of course – have a look at the recent decision in Occupational and Medical Innovations Ltd v Retractable Technologies Inc [2008] FCA 1102

What an unfortunate turn of events this is. 

This is on top of the already unworkable requirement that the person seeking the declaration of non-infringement must (a) pay the patentee’s costs and (b) not challenge validity.  (This is why the above case is the first one since the Patents Act was enacted in 1990.)

Various jurisdictions may be pro or anti patentee, and that’s neither here nor there.  But the jurisdiction really does not do itself any favours with situations like this.

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