Can I Be Sued if I have a patent? Understanding patent infringement.

Filing or owning a patent does not automatically give you freedom to operate.

You can still be sued if your product or process relies on someone else’s patented technology.

This guide explains how infringement works in Australia, who can sue, when your patent can be challenged, potential risks in enforcing, and how to protect yourself.

Here’s what every inventor, entrepreneur, or startup needs to know to protect their idea.

What a Patent Does – and Doesn’t

• A patent gives its owner the right to exclude others from making, using, selling or importing the claimed invention in the country in which the patent is granted.

• However, it does not automatically grant the right to use every component, method, or process that your invention may rely on.

• If your product includes a third-party patented part or method, you could still be infringing even though you hold a different patent.

How Infringement Works: Direct and Indirect

Direct Infringement

• This occurs when your product or process includes every element of a patent claim. Patent claims are the legal definition of the invention; if your product meets all claim features, you risk direct infringement.

Indirect (contributory) infringement

• You can be liable if you supply or promote a component or service that materially contributes to another party’s direct infringement—especially where the component has no substantial non-infringing use.

Examples

• Direct: You manufacture a device that performs each step set out in a patent claim.
• Indirect: You sell a specialised module that only fits and works in a patented product and actively encourage its use for that product.

Example Case study – IP Infringement

Scenario: A Perth startup builds a drilling sensor that uses a wireless communication chip to send data. The wireless chip implements a patented modulation technique held by another company.

Outcome:

• The startup files its own patent for the sensor housing and data processing method.
• The chip patent owner discovers use of their patented modulation in the startup’s product and threatens legal action.
• Because the startup uses the patented chip without licence, the chip owner can allege infringement even though the startup holds a different patent.

What the startup did next:

• Where possible, redesigned the system to use an alternative, non-infringing modulation method.
• Negotiated a licence for the chip with the chip owner.
• Where possible, redesigned the system to use an alternative, non-infringing modulation method.

Lesson: always check whether third-party components or methods in your product are covered by other patents before large-scale production. Of course, purchasing components off the shelf generally exhausts patent rights therein, meaning they can be used as intended. In the example above, the chip may be used, but not the patented modulation technique.

Who Can Sue You for Patent Infringement?

Primarily, the patent owner has the right to sue for infringement. In some cases, an exclusive licensee (one granted full rights under a licence) may also instigate proceedings.
In complex cases, multiple parties (such as companies and their directors) may be named in a lawsuit depending on their role in the infringing activity.

When Can Your Patent Be Challenged?

• Pre-grant (Opposition): After the patent application is accepted but before grant, third parties may file a notice of opposition within a limited timeframe.
• Post-grant (Revocation / Re-examination): Once a patent is granted, anyone can request re-examination or bring revocation proceedings, alleging defects like lack of novelty or inventive step.
• Validity challenges may arise in response to infringement claims or independently, often in court.

Can Enforcing Your Patent Expose You to Risk?

Yes. Enforcing your patent can trigger counterclaims and validity challenges.

The defendant may assert that your patent is invalid, ask the court to revoke it, or seek costs if your claim is found weak or unwarranted.

Courts often decide infringement and validity together, so aggressive enforcement without a strong basis can backfire.

How to Protect Your Invention

For our guide to patenting your invention to protect your rights, see our article How to Protect Your Invention with a Patent in Australia

What Protection Does a Filed Application Give You?

Filing an application secures your priority date and gives you deterrent value, since the technology is rendered ‘patent pending’ and potential competitors will know you filed for protection.

But a filed application alone does not guarantee legal rights – only after grant can enforcement actions be taken (depending on jurisdiction).

Importantly, filing does not protect you from infringing others’ patents.

A practical checklist before you launch

1. Run a clearance search in your target markets.
2. Get a freedom-to-operate legal opinion.
3. Confirm your supply chain and licences for third-party parts.
4. Keep your launch messages factual; avoid claim language that could attract attention before you’re ready.
5. Budget for IP risk management (searches, licences, legal advice).

What to Do If You Are Accused of Infringement

1. Don’t ignore the notice
   Respond promptly and seek legal advice. Delays can worsen outcomes.
2. Preserve documents and evidence
   Secure design files, test reports, sales records and contracts.
3. Assess options quickly
   Options include negotiating a licence, seeking a settlement, redesigning, or challenging the patent’s validity.
4. Consider non-litigious routes
   Mediation or negotiation often resolve disputes faster and cheaper than court.
5. If needed, defend and counter-claim
   Challenging patent validity is a common defensive strategy, but it can be expensive.

Note: Court outcomes depend on claim interpretation, prior art, and commercial factors. Always consult a registered patent attorney and litigation counsel.

International Patent Infringement FAQs

Useful Links

• IP Australia – How to respond to accusations of IP infringement: https://www.ipaustralia.gov.au/manage-my-ip/how-to-respond-to-accusations-of-ip-infringement

• Business.gov.au – Intellectual property overview: https://business.gov.au/planning/intellectual-property

Work with an experienced patent attorney

Working with an experienced patent attorney can make all the difference when it comes to protecting your invention and avoiding disputes – especially when it comes to understanding Patent Infringement.

When you work with us, we’ll help you understand your patent rights, check for possible infringement risks and respond quickly if another party challenges your invention.

We guide you through each step – from licensing decisions to defending or enforcing your patent.

Contact an Intellectual Property Attorney

Contact us today for a confidential consultation if you are concerned about being sued if you have a patent.