Patent Infringement in Australia: Results from a Survey

One of the great unknowns of patent policy is how much infringement goes on, and how much of that infringement leads to enforcement of an informal or formal kind. Our representative survey of over 3700 Australian inventors estimates that 28 per cent of inventions (which were the subject of a patent application) are subject to perceived copying at some time during their (uncompleted) patent terms. In half of these cases, a letter alleging infringement was issued, and, in 4 out of 10 cases, this letter succeeded in stopping the (alleged) infringing behaviour. We estimate a court filing rate of about ½ a per cent (filings per stock of patents in-force in any year). The findings of the survey partially support anecdotal evidence that a great deal of copying and enforcement activity is occurring outside the court system. More surprisingly, a large number of incidents of observed copying were not pursued even to the extent of sending a letter, due to concerns about costs: a result that raises questions about the efficacy of patents for some applicants. Our results also confirm that access to enforcement is an issue, but raise doubts about the feasibility of the most common proposals to reduce the cost of patent litigation. As a small jurisdiction, Australia may need to be more creative if it wants to make the patent system work for it.