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ARTICLE · 08 OCTOBER 2010

Non-Infringement Declarations - Not The Tool They Might Otherwise Be

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Section 125 of the Australian Patents Act 1990 (Cth) provides that "a person who wishes to exploit an invention may apply to a prescribed Court for a declaration that the exploitation of the invention would not infringe a claim of a particular complete specification". An affirmative decision is termed a non-infringement declaration ("NID") and protects its holder from being liable for damages or an account of profits even where the NID is later revoked.

AustraliaIntellectual Property
Gareth Dixon
Gareth Dixon
Chris Bevitt
Chris Bevitt
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Section 125 of the Australian Patents Act 1990 (Cth) provides that "a person who wishes to exploit an invention may apply to a prescribed Court for a declaration that the exploitation of the invention would not infringe a claim of a particular complete specification". An affirmative decision is termed a non-infringement declaration ("NID") and protects its holder from being liable for damages or an account of profits even where the NID is later revoked.

NID provisions were first introduced into Australian patents legislation in the Patents Act 1952 (Cth). These provisions were aimed at a manufacturer who was proposing to make an article or use a process, but who could not obtain clear legal advice, or an assurance from a patentee that the proposed activities would not infringe a patent.

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