Why protect against patent infringement?
A patent provides the owner with a monopoly to exploit the invention to the exclusion of all others. Depending on the type of patent granted, this right extends for an eight (innovation patent) or twenty year (standard patent) period.
Given the value and investment in a patented invention, it is important to protect your patent when those rights, as granted pursuant to the Patents Act 1990, are being infringed, through effective dispute resolution techniques or, if necessary, patent litigation. Disputing the unauthorised use of your patent by a competitor and preventing further patent infringement:
1. protects your market share
2. protects your resulting revenue
3. protects your market reputation from inferior like products or processes
4. increases the commercial value of your patent and business.
What are the different types of patent disputes?
A patent dispute can arise in two ways:
- A competitor, without your authority, is selling or otherwise exploiting a product or process which falls within the scope of your granted patent rights; or
- A competitor considers you are selling or otherwise exploiting a product or process which falls within the scope of their granted patent rights.
Conduct constituting patent infringement includes making, hiring, promoting, selling, offering to sell or otherwise disposing of the patented product/process. Defending unfounded claims of patent infringement made against you by a competitor can offer the same benefits. Also defending it in the right way (to avoid litigation or protracted pre-litigation events) can minimise time and costs associated with disputes of this nature. Getting specialist advice on how best to deal with patent disputes is vital.
What options do I have to resolve a patent infringement dispute?
There are two options in resolving an infringement of your patent, or a claim of infringement against you by another party.
1. Patent Dispute Resolution
While an aggressive patent litigation strategy might be the best approach in certain circumstances, often the preferable commercial outcome (particularly when defending a patent infringement claim) is to use alternative dispute resolution (ADR) methods such as negotiation or mediation to facilitate communication between the parties to reach a settlement to the dispute. If you are the patent rights holder we will prepare an appropriately worded warning notice or letter of demand to be sent on your behalf. If you have on the other hand received a letter of demand, we will provide you with clear advice on where you stand and develop an appropriate response to be sent on your behalf. In both instances, these initial correspondences will then open the lines of communications between the parties (or their lawyers) which creates an opportunity to explore whether a settlement commercially favourable to you can be achieved in the early stages of the dispute. In the majority of cases, patent infringement disputes will settle without the need for legal proceedings being commenced. Our intellectual property and patent lawyers have a strong track record of achieving commercially relevant and favourable results for our clients.
2. Patent Litigation
While we always put in place strategies to explore settlement opportunities, sometimes the adoption of an aggressive patent litigation strategy is unavoidable and/or a necessary commercial strategy. At the start of any litigation we provide you with a clear roadmap showing you how a matter might unfold, with the timeframes and costs associated with each of those stages. We keep you informed of progress and fixed fees for every stage of the litigation process with what we call a Fixed Fee Litigation Structure. Also with our fixed fee project based approach it means you can take the matter in stages and retain certainty, control and transparency on your legal spend.
Our intellectual property and patent lawyers have litigated extensively in the Federal Court of Australia (the appropriate forum for patent infringement proceedings) and bring a wealth of intellectual property experience to devise the strategy best tailored to your needs and those of your business. We also work with a close network of overseas patent lawyers in all key jurisdictions meaning we can assist you with any international patent dispute issues in an efficient way with a clear focus on achieving the right outcome.
HOW CAN ACTUATE IP ASSIST?
It is vital that you obtain accurate, specialist advice on how best to deal with patent disputes and patent infringement claims for your particular circumstances. Actuate IP will work with you to manage the patent dispute resolution process and if necessary the litigation process. As a starting point we will invest time at the outset to understand the nature of your dispute and how it relates to your business and what your business wants to achieve from the dispute – whether you are enforcing your rights or defending claims of infringement made by another business against you. With this understanding we will provide you with a detailed and considered Fixed Fee Proposal that provides you with initial recommendations and fixed fee options on how to approach the dispute in a way that will achieve the right outcome for you. You can then decide whether our firm will be the right fit for your business.