“To authorise” has the same meaning for patents and copyright

Authorisation seems to be the flavour of the month.  Hot on the heels of the iiNet decision regarding authorisation liabliity for copyright infringement, Justice Bennett handed down judgment in Inverness Medical Switzerland GmBH v MDS Diagnostics Pty Ltd [2010] FCA 108, in which her Honour had cause to consider the meaning of “authorise” under s 13 of the Patents Act 1990 (Cth) (Patents Act). 

Bennett J confirmed that “authorise” should be construed in the same way as under the Copyright Act 1968 (Cth).  That is, for the purposes of s 13 of the Patents Act, “to authorise” is to “sanction, approve or countenance” the relevant act.  Interestingly, Bennett J also held that authorisation need not be express, but can be inferred from inactivity or indifference. 

In this particular case, a director of a company (who was also the managing director and founder of the company) was found to be liable for patent infringement because he had authorised the company to sell infringing products.  The director had arranged for the sourcing of the infringing products and also engaged in their distribution.  Justice Bennett found that these actions meant that the director had sanctioned, approved and countenanced the sale of the infringing products.  He had thus authorised the infringing exploitation of the patent for the purposes of s 13 of the Patents Act.

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