Patent Infringement in the Courts – Australia versus USA

As we continue to focus on patent related issues coming out of the USA, it is worth noting the differences between the manner in which patent infringement decisions are handled in both Australia and the USA.


In Australia, most patent infringement actions begin in the Federal Court. At the hearing stage, a single Judge will be assigned the task of determining:

  1. the scope of the monopoly claimed under the patent; and
  2. whether this has been infringed.

If either side considers the Judge has made an error in the final judgement, they are able to appeal the decision to a Full Bench of the Federal Court. At that point, three or more Judges will review the original judgement and determine whether the appeal should be dismissed or upheld. If a party then wishes to appeal the Full Bench of the Federal Courts decision, they can seek leave to appeal to the High Court of Australia. The decision made by the High Court of Australia is generally the final word on the matter.


As the US Constitution has established a patent system to protect inventors, it is the US Federal Court System that oversees patent infringement cases.

The US Federal courts include:

  • 94 District Courts;
  • 12 Courts of Appeal; and
  • 1 Supreme Court.

Most patent infringement cases are initially brought to one of the District Courts. Under the US Constitution, a party may demand a trial by a jury of 6-12 members and can also specify which issues may be addressed by them. This is unique as Australian patent cases never involve a jury.

In essence, the role of the jury is to resolve questions of fact whilst the Federal Judge will resolve the questions of law. However, it is possible that the Court may order a trial by jury of all issues. Similar to Australia, either party may then appeal the decision of the District Court to the Court of Appeal, and subsequently seek leave from the Supreme Court to appeal the decision of the Court of Appeal.

Whilst Australia and the US have a similar hierarchical Court structure, litigation costs can vary considerably in each country due to differences in the law and procedures. Further, due to the relatively small pool of Federal Court judges in Australia, decisions in Australia are relatively consistent. In contrast, with the potential of a trial by jury and the sheer volume of Federal Judges appointed in the US, inconsistencies in the application of law and procedure can result in conflicting decisions between different courts.

Over the next few newsletters, we will consider some of the latest US patent decisions and how the outcomes for these may have been different if it had been heard in an Australian Court. By appreciating how patent infringement actions are litigated in both countries, you can better appreciate how other factors can play a significant role in litigation.