Australian Patent Breaches

Patent Infringement in Australia – What Can You Do?

Do you own your own patent? If you believe your Australia patent has been breached by a competitor, then this post is for you.

What is patent infringement?

A patent may be infringed, deliberately or otherwise, if a competitor uses or copies the invention without permission from the patent holder.

What to do if your patent is being infringed?

If your patent is being used or copied by someone else without your authorisation, there are a number of actions that can be taken to stop this. These steps may range from sending a letter of warning, negotiations to settle out of court, or if all else fails, then court action.

In addition, a patent holder should regularly monitor their registered patent rights along with other important business information, including customer lists and specialist knowledge.

It is recommended to keep track of all important dates regarding the patent such as renewal dates and make sure that all details regarding the patent are kept up to date both within Australia and elsewhere, wherever the patent has been registered.

How you can avoid infringing others’ patents

It is equally important that the patent holder is also careful about inadvertently infringing someone else’s patent rights. As a part of good business practice, it is the responsibility of a potential applicant or patent holder to conduct a search before going public with a new product or logo that may unintentionally violate other’s IP rights.

If any material has been sourced from another individual, it should be done so with their specific permission or clearance. Clearance should be maintained in documented form to confirm the rightful ownership of the patent holder so that should any issues come up, documentation can help prove that any infringement was innocent rather than deliberate.

If it is proved in court that an infringement happened unknowingly, the court cannot order the infringer to pay damages. Instead, the infringer may only have to pay the IP holder the value of any profits gained from the infringement.

What are the penalties for patent infringement?

Patent infringement can be extremely costly, so it’s best to take steps to resolve the dispute by agreement before going to court. An enforcement action that is well managed can lead to a timely and prompt resolution of the dispute. But a mismanaged enforcement action may lead to a drawn out court dispute that may be very expensive as well as time consuming.
If the court establishes that the infringer is indeed liable, it will consider the relevant penalties for patent infringement.

In Australia, patent infringement is addressed by taking the infringer to Federal Court and suing them there. In the case of a successful enforcement action, the court will likely order the guilty party to cease the infringing action by stopping all production, using, selling or importing of the particular product.

There may also be financial penalties imposed and additional damages awarded.

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