Reform unjustified threats of infringement

At a glance

Policy ID: 69

Status: On hold

Priority: Low


Issue summary

Section 128 of the Patent Act allows a person to take legal action against ‘unjustified’ threats of patent infringement. A court can order an injunction and/or damages against the issuer of the threat. The courts have interpreted the unjustifiable threats provisions as capable of being invoked whenever a patent is invalid or not infringed, no matter how reasonable the patentee’s conduct was. There has been some suggestion that the operation of unjustified threats provisions for patents could be improved.

Review of unjustified threats provisions could determine if changes are necessary.


On hold 6 June 2017


Issue to be considered in future. Other matters of higher priority will be considered first.

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