Wronged Patentees Find a Friend in Australian Courts

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Patent stakeholders, check out. Australia is soon becoming a favored destination for innovators seeking interlocutory injunctions.

Australian courts take an average of 18 months to decide on a patent infringement claim, during which period, it found, competitors were marketing their products and causing much harm to patentees. In an effort to protect the rights of patent holders during this period of trial, Australian courts have been increasingly granting interlocutory injunctions.

What is an interlocutory injunction?

An interlocutory injunction is an order given by the court to prevent a party from resorting to certain activities until the final judgment on a case is pronounced. This order is given in the interim stage of trial and is expected to maintain status quo, until the final judgment is given.

Determining factors

Australian courts have been found to offer interlocutory injunctions at a very quick pace, based on certain determining factors. Applications for interlocutory injunctions are heard by a single-bench based on prima facie evidence provided by the patentee against an alleged infringer. Once convinced that prima facie evidence shows strong proof of infringement, the judge then weighs the cons the patentee may face. The greater the patentee’s potential loss during the period of trial, the higher are the chances of earning an interlocutory injunction.

Pressure-test for a patentee

Applying for an interlocutory injunction is a power given to a patentee. However, it’s the absolute test of strength of the case for the patentee. Besides proving invalidity arguments, the patentee also needs to reveal a part of the infringement arguments that can tilt the balance in his favor. Once an interlocutory injunction is granted, more often than not the patentee strengthens his position during trial and earns better prospects in succeeding in the case.

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