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Asserting your rights
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Marking your invention
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Marking your invention with either ‘patented’ or ‘patent applied for’ or ‘patent pending’ (and possibly including your patent application number) is not compulsory. However, it is very useful to alert others to the existence of a granted patent or pending patent application – reducing the likelihood of infringement or of similar patent applications being lodged.
It is an offence to use words such as “Patented” or “Patent Pending” on products that have not been patented or are no longer the subject of pending patent applications.
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Infringement
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Patent infringement occurs when someone (without permission) makes, uses, imports or sells the invention (even if it was independently invented) within the country or area covered by the patent.
If you believe your patent is being infringed, you should engage a patent attorney to examine the alleged infringement and to provide formal advice as to whether the product or activity of concern constitutes an infringement of your patent.
Action for infringement is a legal proceeding. While your patent attorney will be involved, infringement actions are handled by lawyers. Our associated law firm, Phillips Ormonde & Fitzpatrick Lawyers, assists clients with these proceedings.
Often, an infringement action will commence with correspondence to the alleged infringer. Sometimes this is sufficient to stop infringement.
Where necessary, court action may be initiated, usually in the Federal Court. Appeals may be made to the Full Court of the Federal Court, and when leave is granted, to the High Court of Australia.
Litigation is not for the faint-hearted. It is typically time consuming and expensive. However, when the patented invention is commercially valuable, it may be the only viable option.
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