Commonwealth Consolidated Acts

PATENTS ACT 1990 - SECT 128

  (1)   Where a person, by means of circulars, advertisements or otherwise, threatens a person with infringement proceedings, or other similar proceedings, a person aggrieved may apply to a prescribed court, or to another court having jurisdiction to hear and determine the application, for:

  (a)   a declaration that the threats are unjustifiable; and

  (b)   an injunction against the continuance of the threats; and

  (c)   the recovery of any damages sustained by the applicant as a result of the threats.

  (1A)   The court may include an additional amount in an assessment of damages sustained by the applicant as a result of the unjustifiable threats, if the court considers it appropriate to do so having regard to:

  (a)   the flagrancy of the threats; and

  (b)   the need to deter similar threats; and

  (c)   the conduct of the person who made the threats, being conduct that occurred after the person made the threats; and

  (d)   any benefit shown to have accrued to the person who made the threats because of the threats; and

  (e)   all other relevant matters.

  (2)   Subsection   (1) applies whether or not the person who made the threats is entitled to, or interested in, the patent or a patent application.