Rewriting Judicial History or Just Refilling Ink? Patents and the Right to Repair in Australia Post-Calidad: "Logic, Simplicity and Coherence with Legal Principle" Prevail over "Rights Which They Have Held for More Than a Century"

Where to draw the line between repair and remaking, and around the scope and character of both patentees' and consumer rights has been entertained recently by the Australian High Court in their consideration of Calidad. Until the Calidad litigation, there was little jurisprudence (and, with the exception of the conference on which this issue of this journal is based, few legal scholarly accounts), in Australia, as to what constitutes a repair of a patented product. Given the significance of the issues involved for the stakeholders mentioned, as well as in terms of competition law policy and principles, the decision is long overdue. At issue were a patentee's exclusive rights and the tensions therein with the capacity of consumers to repair a product they purchase (likely holding the assumption that such a use would not encroach upon a patent owner's legitimate interests), as well as the various secondary (or re-manufacturing/refurbishing) markets that have arisen both to supply a need (often in keeping with laudatory goals around recycling and repurposing for environmental reasons), and to profit from an opportunity in accordance with principles of demand, and, it follows, to keep costs of a product down. In establishing that Australia will follow the approach of the United States in particular with regard to what the majority refer to as the "comprehensible and consistent" doctrine of exhaustion of patents, over the previously dominant principle of implied licence (a shift that the minority decision- makers determine is "a question for the legislature, not the courts" and which they characterise as "stripping patentees of rights" long held), the High Court has provided much-needed certainty and clarity about a persistent conundrum within Australian patent law and its relationship to rights of repair.