Patent infringement defined

Patent infringement occurs when patent rights are breached. Australian patent rights are defined in terms of:

“The exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention” in Australia.

“Exclusive rights” means the right to stop others. That is, a patent is a negative right allowing the owner to prevent others using the invention, but does not guarantee that the owner can use the invention. By way of example, if the invention is an improvement in a product shown in an earlier patent, exploiting the invention might infringe the earlier patent. Having a patent does not affect whether you are allowed to exploit your invention (i.e. whether you are “free to operate”). More on freedom to operate.

“Exploit” includes:

“(a) where the invention is a product – make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b) where the invention is a method or process – use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use”.

The “invention” is the invention defined by the patent’s claims.

An unauthorised exploitation of an invention constitutes direct patent infringement – e.g. the unauthorised importation of a product that is a version of the invention is a direct patent infringement.

Unauthorised actions that do not exploit an invention may still infringe a patent owner’s rights if the actions contribute (or potentially contribute) to someone else infringing the patent. This is referred to as “indirect patent infringement” or “contributory patent infringement”.

The definition of “exploit” does not mention copying. A patent can be infringed without copying, e.g. by independently creating something sufficiently similar to the invention covered by the patent.

Please contact us to discuss how we can assist.