Reluctance Realised? Emerging Problems with s 117(2)(b) of the Patents Act 1990 (Cth)

The orthodox conception of patent infringement is that a party is liable for its own infringing conduct. However, various forms of infringement exist in Australian patent law that extend liability to those who do not exploit patented inventions themselves. This includes ‘supply infringement’ which, in certain circumstances, creates infringement liability in the supply of products. Compared to equivalent provisions in the UK and US, Australia was quite late in creating statutory causes of action for supply infringement. Under s 117 of the Patents Act 1990 (Cth), supply infringement was always designed to extend the bounds of what constituted infringing conduct. However, when the current operation of s 117(2)(b) is examined with regard to the reasons why Australian lawmakers were reluctant to legislate supply infringement, the provision may extend too far. This undermines the legislative intent behind the introduction of the provision and has significant ramifications for the pharmaceutical industry. In particular, it has capacity to increase public expenditure on drugs, and creates uncertainty in drug development strategies. This article concludes by briefly addressing possible solutions to these problems and articulating considerations relevant to future reform.