Innocent infringement

Innocent patent infringement occurs when a person (or company) infringes a patent without any reason to believe that any relevant patent existed. In Australia, if a person can satisfy a court that their infringement was innocent, the court may reduce the applicable penalties. The court may refuse to award damages, or to make an order for an account of profits (more on patent infringement penalties).

When a patent owner has marked its product as patented, any infringement is unlikely to be considered innocent in Australia:

“If patented products, marked so as to indicate that they are patented in Australia, were sold or used in the patent area to a substantial extent before the date of the infringement, the defendant is to be taken to have been aware of the existence of the patent unless the contrary is established.”

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