Indirect patent infringement
(AKA contributory infringement)
Australian law prohibits actions that contribute (or potentially contribute) to someone else infringing a patent, even if those actions do not directly infringe the patent. This is referred to as indirect infringement.
By way of example, the sale of a kit of parts along with instructions to assemble those parts to form a gadget is likely to be an indirect infringement of any patent that covers the gadget (more on patent coverage), even if the patent does not cover the kit of parts.
Australian law provides three categories of indirect infringement. The supply of a product (e.g. the kit of parts) is an infringement if:
- the product’s only reasonable use is an infringing use;
- the product is not a “staple commercial product” and the supplier had reason to believe the person to whom they supplied it would put it to an infringing use; or
- the supply is accompanied by any instruction, inducement or advertisement that suggests an infringing use.
Generally speaking, multi-purpose products may be considered to be “staple commercial products” if they have significant non-infringing uses.
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