It is important that a patent is an effective tool that assists the commercial exploitation of a new invention. Therefore patents need to be written well. Further they need to have a strong claim to the invention that is enforceable to stop others unlawfully exploiting the monopoly to the invention, which is granted by the patent to the patentee only.
It should be noted that
the infringing product is compared to the claimed invention in the patent
and not to the patentee’s own product.
In a recent decision handed down by the Federal Court of Australia, there was given a judgement for infringement of Australian Innovation Patent No 2013100937. This is an Australian innovation patent drafted by Baxter IP for one of their clients.
In proper enforcement of the patent, the Court action was taken against the infringing company as well as the director and shareholder of the infringing company. In this way a full claim of damages can be collected from these entities dependent on their assets.
The Court issued damages against the infringing parties of nearly $400,000 and costs of the Court proceeding with regard the infringing patent.
This followed the principle that infringement of a patent is a statutory tort and the elementary rules are:
that the overriding principle is that the victim should be restored to the position he would have been in if no wrong has been done, and
that the victim can recover loss which was forseeable, caused by the wrong and not excluded from recovery by public or social policy.
Therefore costs in this case were sought and obtained under five heads of infringement:
Section 122 (1A) of the Patents Act 1990 allows relief for infringement of patent for flagrant infringement. That is:
(1A) A court may include an additional amount in an assessment of damages for an infringement of a patent, if the court considers it appropriate to do so having regard to:
(a) the flagrancy of the infringement; and
(b) the need to deter similar infringements of patents; and
(c) the conduct of the party that infringed the patent that occurred:
(i) after the act constituting the infringement; or
(ii) after that party was informed that it had allegedly infringed the patent; and
(d) any benefit shown to have accrued to that party because of the infringement; and
(e) all other relevant matters.
Baxter IP look forward to being part of your project and undertaking strong, valid and enforceable patents to assist commercial exploitation of your new invention.