Litigious patent holders are exploiting the Australian innovation
patent system to leverage the full benefits of the innovation patent,
thereby gaining a significant advantage during litigation.
Litigants are filing standard patents and, when litigation is
contemplated, resorting to the filing of multiple (divisional)
innovation patents – utilising the innovation patents as an overwhelming
force against defendants. Innovation patents offer a significant
advantage in that there is no obviousness test.
For example, recently, in Britax Childcare v Inva-Secure, the
patent holder split off nine (divisional) innovation patents from a
standard patent and sued on all the patents. The defendants sought
revocation of all 10 patents.
Further, in the Apple v Samsung litigation, Samsung has been
sued over as many as 22 standard patents and innovation patents. Samsung
recently launched a further action directly against the Australian
Patent Office seeking an order that it cannot grant innovation and
standard patents for the same invention.
For patent litigants, the innovation patent has become a significant weapon in litigation practice.
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