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A patent is a right that the inventor of an invention can acquire, so that he or she alone can exploit it for his or her benefit. This is based on the proposition that there should be a broad incentive for people to engage in innovation knowing that their efforts will be rewarded. Ordinarily, the patent can extend to an eight or twenty year period, depending on the type of invention (whether the patent is an innovation or a new invention). A patent infringement will occur through a competitor’s unauthorized exploitation of a patent.

A patent can be a very lucrative business asset, so it goes to reason that an inventor or innovator will want to protect it from exploitation by others. Infringements should therefore be dealt with either by dispute resolution, or if that does not resolve the problem, through litigation. Taking appropriate action will protect your right of ownership in the patented work, protect your market share, the resulting commercial benefit and revenue, protects your reputation from substandard products and maintains the value of your business.

Letter of Demand

The first step in attempting to resolve a patent infringement is to issue a letter of demand, if and where possible, on the infringing party. Such a letter may include the following:

  • Clearly identify the right and entitlement to the patent in dispute;
  • Outline the particulars of the infringing activity, and providing evidence where possible;
  • State the legal authority under which the alleged infringement has taken place, such as the specific section or part of the Copyright Act 1968 (Cth);
  • Provide a reasonable time within which the infringing party is to cease and desist in their infringing conduct and return and destroy any material used in the infringement; and
  • State that if the demands in the letter are not met within the stated timeframe, the aggrieved party reserves its rights to prosecute this matter at law.

The letter of demand may need to be modified given the particular kind of patent that is being infringed. The letter of demand is not a legal requirement, however it can create legal liabilities. It is important therefore to make sure that it is drafted properly, preferably by a legal practitioner who has experience in the field of intellectual property law.

ADR and Patent Litigation

Alternative Dispute Resolution processes, such a negotiation, mediation, conciliation or arbitration are cheaper and less hostile than litigation. These processes aim to open up bridges of dialogue between parties in dispute so that clear lines of communication can lead to the resolution of any claims, particularly if and where a letter of demand has not been received well. This is the preferable way to resolve disputes however it is not always successful, particularly when both parties refuse to talk, either party is acting unreasonably or is unwilling to co-operate in good faith. In this situation, litigation may be the only way out. The kinds of remedies that may be available to an aggrieved party in patent litigation include:

  • Injunctive relief, which prevents the infringing party from persisting in its infringing activity;
  • Interlocutory relief, which brings alleged infringing activity to a stop pending a determination of the substantive issues relating to infringement;
  • Damages, which accounts for the loss suffered by an aggrieved party caused by patent infringement; and
  • Delivery and Destruction, which is an order that requires the infringing party to surrender and destroy material and information facilitating the infringement.

It is our firm’s policy to try to resolve disputes in the most cost effective and efficient manner. If litigation becomes necessary, we will provide the appropriate legal advice and representation that the circumstances of your case require. For more information, you may refer to our section on “Civil & Commercial Litigation”.

If you require assistance with a patent dispute and/or patent infringement matter, you should make an appointment to see one of our Intellectual Property Solicitors, who will usually see you in our Sydney Office or otherwise will see you in one of our branch offices. To see a list of our branch offices, click on the “Locations” tab above.

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This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.

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