As the owner of intellectual property rights, the onus is on you to actively enforce them, and to monitor the landscape generally both for your own safety, and to maintain your proactive IP strategy. Having a patent is a deterrent to potential infringers, however, a patent won’t stop third party infringements just by virtue of its existence. If your rights are infringed, the only way to maintain their worth, and preserve your ability to attract ongoing financial value is to vigorously enforce them.
Direct infringement of patent rights occurs when a third party exploits the invention without the agreement or authorisation of the patent owner. Another way patent rights can be infringed is where a product has been supplied to another party, and then used in a way that may constitute infringement. This is known as contributory infringement.
Under the Patents Act, an infringement of a standard patent can occur at any time after the publication date of the complete application. However, proceedings for the infringement may only commence after the patent itself has been granted.
If your patent rights have been infringed, there are a number of ways that you can enforce them.
If you, as a patent owner believe that your patent rights are being infringed,
your attorney will draft and send a ‘letter of demand’ to the alleged infringer, demanding that the infringing act stop. Alternatively, where appropriate your attorney can demand payment.
It is always in your interests to attempt to resolve infringement disputes through negotiation and dispute resolution mechanisms rather than proceeding to the Federal Court, which is a costly and resource intensive pursuit.
There will always be circumstances where litigation is unavoidable. If this is the case, it ordinarily occurs in the Federal Court, however, there are instances where state Supreme Courts will hear disputes. The Federal Court is preferable for all parties though, because it has a specialist panel of patent judges.
If the patent holder is successful at Court, they may be granted an injunction. In some circumstances, damages or an account of profits may be given, however it depends on the particular nature of the infringement. For example, if the infringement is innocent and without intent, damages will not be available to the patent owner.
At Platform IP our expert attorneys manage both dispute resolution and litigation processes with proven skill and demonstrated expertise. Once a matter reaches court, we work with our trusted network of IP lawyers and barristers to tailor the best litigation strategy for you. We then support, assist and guide the legal team throughout the process by reviewing and briefing on the details of your case, ensuring that key processes have been followed prior to commencing litigation, and expertly preparing your legal documents for filing. We are your expert and trusted point of contact throughout any contested proceeding or dispute resolution process, keeping you informed and prepared every step of the way.
