The Court found that the word "exploit" in the Act describes the content of a right and is not intended to create separate rights in relation to each of the identified activities (eg make, sell, hire). This is consistent with the literal language of the definition of exclusive licence in the Act which refers to a patentee conferring on a licensee "the right to exploit the patented invention throughout the patent area to the exclusion of the patentee and all other persons".
This decision confirms that a licence agreement should expressly state that the grant is of an exclusive licence 'to exploit the patent to the exclusion of all including the patentee' if the intention is for the licence to be an exclusive one for the purposes of the Patents Act 1990. There is a real prospect and risk that if this express language is not used then a third party could find a basis to challenge the exclusive nature of the licence. Such a finding will undermine a licensee commencing an action for infringement and/or claiming any damages which may arise from such an infringement. If the licence is drafted so that the patentee withholds the right to any activities which fall within the definition of "exploit" then the licence will be considered to be non-exclusive for the purposes of the Patents Act 1990.