Infringement proceedings or opposition to an innovation patent
cannot be commenced until the innovation patent has been certified!A certified innovation patent cannot be deemed an
infringement of a granted patent unless so proved beyond all reasonable doubt in the appropriate legal jurisdiction!Mere
notification by a patentee or their legal representative informing an innovation patent applicant or certified innovation patent holder that they are infringing a patent does NOT in my opinion constitute a patent infringement!
I also do not believe that an innovation patent can be deemed to be an infringement of a patent application! A patent application is not the same as a patent!A patent application is NOT the same as a patent. Claims in a published patent application have not been examined by a national patent office and may not be
representative of a scope that will ultimately be granted!A patent can only be infringed if it is
valid and the validity or otherwise of a patent
application has not been established! Indeed the patent application may be refused or the claims on which the patent applicant claims infringement may be totally rejected by the patent examiners!
My reading of the act tells me that any patent
applicant that claims patent infringement of their patent application by a certified innovation patent holder on the basis of their patent applications may be committing an offense under the act and the innovation patent holder may go to the courts to claim relief or to have the court determine that the claims of patent infringement are unjustified.To download the act go here:
http://www.austlii.edu.au/au/legis/cth/consol_act/pa1990109.txt/cgi-bin/download.cgi/download/au/legis/cth/consol_act/pa1990109.rtfdoug
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