Section 60(3) of the Patents Act says supplying staple commercial products is not contributory patent infringement.
In Nestec v Dualit, Arnold J considered what is a staple commercial product.
He cited Pavel v Sony, which said “in ordinary language, a staple commercial product is a commodity or raw material” and staple commercial products are “of a kind which is needed every day and can be generally obtained”.
He also referred to the Australian decision in Northern Territory of Australia v Collins, which said a staple commercial product “must ordinarily be one which is supplied commercially for a variety of uses”.
As the defendants’ coffee capsules had “no other use other than with a limited range of portionised coffee machines”, they were not staple commercial products.
What amounts to an easily obtained daily necessity varies hugely between organisations, and this element of the test is unenlightening. But the ‘variety of uses’ test is helpful, particularly in the context that most staples are commodities or raw materials.
Posted by Giles Parsons, who specialises in intellectual property agreements and disputes relating to patents, copyright, trade marks, designs, as well as domain name disputes and reputation management.
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