Penalties for patent infringement

Australian patent infringement can be addressed by suing the infringer in the Federal Court. If the enforcement action is successful, the court will more than likely order an “injunction” to stop the infringing action (e.g. to stop the making, using, selling and/or importing of an infringing product).

The court may also order that financial penalties be paid by the infringer to the patent owner. The penalties (remedies) can include the patent owner’s choice of damages or an account of profits. Additional damages may also be awarded.

  • Damages are calculated based on the damage to the patent owner caused by the infringement.
  • An account of profits is calculated based on the profits made by the infringer as a result of the infringement.
  • Additional damages are based on the flagrancy of the infringement and the need to deter similar infringement, amongst other things.

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