Freedom to operate

摘要

In most cases, if the patent on an item has expired, or the item has never been patented then it is permissible to copy the item. However the greatest difficulty is in rinding whether a patent exists. The most favourable outcome of a search is to discover that the item is only patented overseas, or was patented in Australia but that the patent has now expired. If a patent is not located the difficulty is in knowing whether no patent ever existed, or whether the search has not been sufficiently thorough. However, provided a reasonably diligent search was performed without success, the courts are unlikely to impose a penalty beyond an order to desist infringement if a case is subsequently brought.