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Patent infringement defined

An Australian patent is infringed by making, using and/or selling:

  • versions of the invention; and/or
  • products resulting from a version of the invention

in Australia without permission from the owner of the patent.

The legal definition

The owner of an Australian patent has 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

“Exclusive rights” means the right to stop others, e.g. to stop others exploiting the invention.

Term

Standard patents last for up to 20 years. Innovation patents last for up to 8 years.

exploit

“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

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

Direct infringement

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 direct patent infringement.

inDirect 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”.

No need for copying

When assessing Australian patent infringement it is relevant whether or not the ‘infringer’ copied or came up with the technology by themselves.

 

Please contact us to discuss patent infringement.