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Note from 25 August 2021, the innovation patent will cease to exist. After this date, you can only file a divisional innovation patent if it is based on a previously filed patent. Read more about this change in our article.

You may be breathing a sigh of relief now that your patent has been granted and certified, but now is not the time to sit back and relax. Now that your patent is enforceable, you are going to have to work hard to make sure people do not infringe your patent, and that your competitors do not succeed in opposing your patent and invalidating it. Enforcing a patent is not rocket science, but certain steps must be taken to ensure it is protected.

This article goes through some considerations for managing your patent, dealing with oppositions and opposing other patents.

Protecting your patent against infringement

Enforcing a patent and making sure it is used appropriately and not infringed is your responsibility. Your business may be considering developing an infringement strategy to ensure that your intellectual property is secure. With patenting, the most important factor is maintaining secrecy. By keeping your patent a secret, you can more effectively take advantage of commercial possibilities.

It is best to have a strategy in place before you find that someone is infringing your patent. This means you will be ready when it does happen, and you will know the procedure to follow. There are various actions you can take, and each one should be considered in light of the nature of the infringement and the costs involved in enforcing your rights.

Dealing with oppositions

Your competitors are going to try and take your patent away from you! They may try to oppose your patent because they believe it infringes their own patent, or alternatively because they don’t think the invention being protected is new or inventive enough to be patented. The patent opposition process allows people to challenge the validity of your certified innovation patent, your standard patent application and even your accepted standard patent application.

And that’s not all that the patent opposition process allows others to do. Your request for leave to amend a patent specification or your request for extension of time to restore your patent can also be challenged.

Opposing other patents

You may be concerned that someone else is being granted a patent that infringes your patent, or is not inventive enough to be patented. If this is the situation, you have the option of opposing a patent.

You will need to file a notice of opposition with IP Australia. If you are opposing an innovation patent, you can file the notice of opposition at any time after the innovation patent has been certified. If you are opposing the grant of a standard patent application, it must be filed within three months of acceptance.

Keep in mind that it can be quite expensive to oppose a patent, starting from filing the notice of opposition, through to attending the hearing. You will need to be able to show that the patent is lacking in inventiveness and back up your claim that it does not warrant a patent.

Conclusion

It is important to get proper legal advice when opposing a patent, as well as when responding to an opposition. An intellectual property professional will be able to help you understand what is required and the options that you have.

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