Have you gone to the effort of having your unique invention patented believing this will protect you from copycats trying to steal your idea? Discovered these rights have been violated anyway? What you’re experiencing is patent infringement.
Patent infringements in Australia and globally are less frequent than trademark violations, but still make up a fair share of lawsuits filed against intellectual property theft each year.
In this guide, we will look at what constitutes an infringement of a patent, how to avoid it and how to fight back if your patent has been infringed upon.
Patent infringement involves any violation of a patent owner's rights concerning a patented invention or product. That is, another entity markets, sells or commercially gains by using a product or invention that is substantially similar to (a copy of) an existing patented item without the permission of the patent holder.
Patent infringement happens across all industries at some time or another. To understand where patent infringement can occur, it is best to look at what can be patented.
As an example, let’s say you have patented your invention of a brand-new, exceptional children’s toy that you sell only in selected stores. You then see an identical copy of your invention being sold elsewhere under a different name but using your patented specifications and manufacturing process. At no time did you give permission for these copies to be made or sold. This constitutes a patent infringement.
As another example, you may have spent years developing a new medication that delivers groundbreaking outcomes for those taking it. You patent this idea to stop any other pharmaceutical company from manufacturing it, but see a very similar medication being marketed for the same purpose. This may also constitute a patent violation.
To understand exactly what constitutes infringement and what can be defended against, let's review the different types of patent infringement.
Did you know your whole patent does not have to be copied to be considered an infringement? Or that both selling and using a patent without permission can be considered infringement?
What you can push back against and who you can pursue for the patent infringement all come down to which type of infringement has occurred.
This is any making, using, selling or importing of a patented product or invention without first securing a licence from the patent holder. This is often linked with wilful infringement which we will discuss further on.
Indirect infringement involves the use or sale of a patented item that has been obtained via a third party. While the party involved may not have initiated or been the original infringer, their actions have perpetuated the infringement and they may still be held accountable.
Contributory infringement is closely linked with indirect infringement. Involving the purchase or importation of a part of an invention covered by a patent, contributory infringement seeks to prove that the intention behind the purchase was to duplicate the original patented item itself.
This type of infringement can be more challenging to prove as many parts are generic and could have several uses outside of the patented invention in question.
This is similar to direct infringement in that it involves a wilful disregard of patent laws and a determination that the offender purposefully set out to commit acts of infringement for their own gain.
Literal infringement involves proving a direct correlation between the infringing device or process and the existing patent for this device or process. Or more simply, showing why A is an exact copy of B.
In cases where an exact type of infringement cannot be determined, the Australian court system will review the construction of the claim overall. This purposive approach means that they will assess what a skilled person could be expected to understand in consideration of general knowledge and the patent specification overall.
They will also review whether the infringer's actions can be seen as exploitative before passing down a judgement.
Before you assume that your product or invention is wholly unique, it is best to perform a few checks to ensure that you are not accidentally committing patent infringement.
In Australia, this is easily achieved via the patent search tool provided by IP Australia.
Within your search, you may need to delve deeper into what elements of an existing patent are protected. You cannot simply take an existing idea and redevelop it as a new patent. Remember, even partial use can be considered an infringement.
Even if you have done a thorough search before pursuing the finalisation of your invention or product, the time it takes you to fully develop the idea could see someone else lodge a patent for it in the interim.When it comes to patents, it is first in, first serve, so be sure to do a final check before you submit your patent to avoid potential infringement or disappointment.
There can be challenges in determining patent infringement and these lie within the specifications of each patent itself and the limitations placed upon patents by territorial borders.
For instance, while your patent protects you in Australia it may not afford you the same protection in overseas markets. This means you are required to lodge patents with the patent office of whichever country you require your rights to be enforceable and defensible.
Remedies for patent infringement in Australia follow much the same process as copyright or trademark infringement with most patent holders issuing a letter of demand in which the offending party is asked to cease their behaviour.
If this is ignored, you can then pursue mediation or legal action to resolve the infringement. Often with patent infringement, significant action is taken to not only stop the behaviour but to recoup financial losses.
The Australian Patents Act aims to protect patent holders and discourage infringing behaviour while promoting economic well-being and penalties for breaching this act can be significant. Patent infringement damages can include compensation for loss of revenue as well as all court costs and in some instances, hefty fines or jail time.
Whether you need support searching out existing patents, registering your patent or defending it against misuse, IP Guardian can help. As highly skilled and experienced patent and trademark attorneys, we understand patent law inside and out.
We work closely with our clients to protect them against unlawful infringement while also ensuring they are not engaging in infringing behaviour themselves. We are passionate about protecting the unique products and inventions of our clients and their contribution to our economy.
With fixed-priced fees across a range of our patent and trademark services, we make it easier for everyday Australians to protect their intellectual property.
To learn more about patents and how we can help protect your new invention, contact our team today at (02) 9071 0130.
Registered Patent and Trade Mark Attorney with significant experience obtaining all forms of registered intellectual property. I hold a Bachelor of Science in Engineering, a Masters of Business Administration and a Masters of Intellectual Property. I’m passionate about showing my clients how they can protect their brands through trademark registrations.
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