You have invested a lot of time, effort and resources in coming up with your invention and applying for a patent, and now you discover that your competitor is making the same product. What can you do?
Before you can do anything, you need to have a granted patent. If your patent hasn’t already been granted, there are some things you can do to speed up the process, but it may still take several months.
Once your patent has been granted, your lawyer can write a letter of demand to the infringer, asking for an immediate end to the infringement and payment of compensation for the infringing acts.
If the infringer does not provide a satisfactory response, you can sue for infringement. In Australia, this usually happens in the Federal Court. Your lawyer files an application and statement of claim, setting out why you say that your patent has been infringed.
The infringer’s lawyer then files a defence arguing that the patent has not been infringed or is not valid. You then file evidence from expert witnesses supporting your case, and the defendant files evidence from expert witnesses in reply.
A trial then occurs, with your barristers cross-examining the defendant’s witnesses and the defendant’s barristers cross-examining your witnesses. A few months later the judge provides a detailed written decision.
The whole process usually takes a couple of years. If it is urgent for you to stop the infringement, you can request an interlocutory hearing. This normally happens within a month or two and if you have a strong case the judge may grant a temporary order preventing the defendant from infringing until the case has been heard in full.
Patent infringement cases are expensive and time-consuming, so you need to be aware of the strengths and weaknesses of your case before you start.