Infringements Page – s57 - To establish infringement under the Patents Act the plaintiff will have to prove that he or she is the proprietor or exclusive licensee of a patent currently in force; that the defendant has, without authority, performed an action within the area’ ‘patent [S13(3)] in relation to the invention as defined by one or more of the claims. Burden of Proof Page 398 – Burden is on the patentee to establish that the defendants conduct amounts to infringement. If the court is satisfied that it is likely’ that the defendant has used that ‘very process, and then plaintiff has made reasonable but unsuccessful attempts to discover what process the defendant has actually used, the burden switches to the defendant to prove otherwise. and Marrow’ approach Page 399 ‘Pith – A test typically conducted by the courts - originally from - to Clark v Adie determine whether the essential elements of the invention, with the less essential parts being omitted or replaced by a equivalent’ which ‘mechanical would perform the same function. Mainly used to determine the essential essence of the invention. Interpreting the specification PAGE 398-399 – First step is to decide what the invention consists of and the second is to compare the infringing article or process. Certain principles for this process were outlined in: Decor Corp Pty Ltd v Dart Industries Inc Direct Infringement Make a Product Page 390 – Page 391 Hire, Sell or otherwise Dispose of – Use a product unauthorised Page 392 – Import Page 393 –
Infringements – Page s57 - To establish infringement under the Patents Act the plaintiff will have to prove that he or she is the proprietor or exclusive licensee of a patent currently in force; that the defendant has, without authority, performed an action within the ‘patent area’ [S13(3)] in relation to the invention as defined by one or more of the claims. Burden of Proof – Page 398 Burden is on the patentee to establish that the defendants conduct amounts to infringement. If the court is satisfied that it is ‘very likely’ that the defendant has used that process, and then plaintiff has made reasonable but unsuccessful attempts to discover what process the defendant has actually used, the burden switches to the defendant to prove otherwise. ‘Pith and Marrow’ approach – Page 399 A test typically conducted by the courts - originally from Clark v Adie - to determine whether the essential elements of the invention, with the less essential parts being omitted or replaced by a ‘mechanical equivalent’ which would perform the same function. Mainly used to determine the essential essence of the invention. Interpreting the specification – PAGE 398-399 First step is to decide what the invention consists of and the second is to compare the infringing article or process. Certain principles for this process were outlined in: Decor Corp Pty Ltd v Dart Industries Inc Direct Infringement Make a Product – Page 390 Hire, Sell or otherwise Dispose of – Page 391 Use a product unauthorised – Page 392 Import – Page 393