Patent Disputes & Infringements:

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.

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”.