Chapter 4 of my book discusses patent remedies in the U.K., Canada, and Australia. I discuss the law of patent damages in Australia in particular at various places in between pages 188 and 210. (The case law is fairly sparse, but there a few leading decisions.) Anyone looking for a more detailed discussion may wish to consult two papers I came across during my recent research visit at the Max Planck Institute. One, by Dimitrios Eliades, is titled Damages for Patent, Design and Trade Mark Infringement and is published in the September/October 2011 edition of the Australian Intellectual Property Law Bulletin, at pages 124-28. (It appears that a version of the paper is also available online here, in 62 Hearsay: The Journal of the Bar Association of Queensland (2013).) The other, by Gavin Adkins, is titled Decisions, Decisions: Damages or an Account of Profits for Patent Infringement?, and is published in 22 AIPJ 10-28 (2011). This paper provides a detailed account of the leading cases and notes some of the open questions under Australian law, including whether Australian courts will follow the U.K.'s United Horse-Shoe principle (discussed in relation to Canadian law in my previous post, and in relation to Australian law in my book at p.189 n.93); whether courts may award damages "at large" when other evidence quantifying the harm is lacking; and whether "additional damages" under Australian Patent Act section 122(1A) (discussed in my book at p.210) are available when the plaintiff seeks an award of defendant's profits. Both papers cite Australian cases in other areas of IP law and thus provide some helpful context in understanding how Australian courts may approach patent damages in future cases.
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