Patent Infringement and Director Liability

In a recent Federal Court case (Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited), it was held that a director of two of the companies selling the infringing product was also personally liable for the infringing acts.

Inverness Medical Switzerland GmbH (Inverness), the owner of four Australian patents covering a range of immunoassays, filed a patent infringement action against a number of companies involved in the distribution of a home pregnancy testing kit. The infringement action was also filed against Dr Prakash Appanna, a director of two of the companies, MDS Diagnostics Pty Limited and MDS Diagnostics Limited.

Deciding that the kits did indeed infringe the patents, Justice Bennett turned her attention to the question of whether Dr Appanna was also personally liable, on the basis of being a joint tortfeasor, or on the basis that he "authorised" the infringing acts of the MDS companies.