Is it patent infringement when a company steals a patented product and sells it or gives it away in another country?
I have a product that is patented in Australia, and another Australian company is threatening to steal it, both to give it away and sell it overseas. They’re planning to make it in China and will sell it and give it away in Europe, but they’re here in Australia, so the revenues are coming back to Australia.
Patents are territorial. That means that an Australian patent is valid in “the Patent Area” and the patent holder gets the following rights in the Patent Area:
- where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire, or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or
- where the invention is a method or process—use the method or process or do any act mentioned in (a) in respect of a product resulting from such use.
“The Patent Area” is:
- Australia; and
- the Australian continental shelf; and
- the waters above the Australian continental shelf; and
- the airspace above Australia and the Australian continental shelf.
Notice that this specifically does not talk about territories outside of Australia or where the profits are coming from or going to. Provided the manufacture, use, offer for sale and sale of the item covered by the Australian patent all take place outside of the Australia and the item does not get imported into Australia at any time, then this is not a patent infringement.
If a patent holder wants to protect the invention outside of Australia, then they need to make use of the PCT (Patent Cooperation Treaty) or Paris Convention and file it within a year of the Australian application in all of the territories of interest.
If the Australian patent holder fails to protect the invention outside of Australia and only has an Australian patent, then there is nothing stopping someone else from exploiting the invention elsewhere, even where the money is repatriated back to Australia.
