Boundaries of patent infringement law

In the modern global environment of rapid technological change and quickly evolving business practices, new issues frequently arise that challenge the operation of patent law. Understanding how patent law operates in this global environment is vital because the patent system plays an important role in the way new technology is developed and brought to market. The accepted rationale for the patent system is that it is an economic tool to incentivise innovation and thereby enhance social welfare. It follows, then, that if patent law handles emergent issues (or is likely to handle them) in ways that conflict with its underlying rationale, the development of new technology may be hindered. Six diverse emergent issues that challenge the operation of patent law in Australia are examined in this thesis. They take two forms: technological, originating from development of new technology; and legal, resulting from recent case law or legislative amendment (either foreign or domestic). Technological and legal issues arise frequently and it is impossible to evaluate them all. Thus, this thesis focuses specifically on issues that are relevant to aspects of Australian patent infringement law and are amenable to doctrinal legal analysis and qualitative economic reasoning. The aspects of patent infringement law examined are: standing to initiate infringement actions; infringement by exploitation; secondary infringement; innocent infringement; and false representations about patents. In addition, to give perspective on reasoning in this study and, in some circumstances to identify solutions to defects in the law, analysis of each issue also involves a foreign comparative law component. This study demonstrates that many of the emergent issues examined are not, or are unlikely to be, dealt with under current Australian patent law in a manner consistent with the justifications that underpin it. Accordingly, various refinements to the law are proposed to ensure the Australian patent system is kept up to date.