Virtual marking of patented and design rights protected products

Issue summary

The Patents Act and Designs Act provides that a defendant to infringement proceedings may not be liable for damages if they are unaware and had no reason to believe that the product was protected by a patent or design (the ‘innocent infringer’ defence). 

A defendant is taken to have been aware of the existence of a patent or design where a protected product is marked to indicate that it is patented or is covered by a registered design in Australia. 

However, it's an offence to make a false representation that a product is protected. This means that products that have a physical marking indicating they are protected may be illegal if the status of the protection changes (e.g. the patent or design lapses). 

It's been proposed to amend the Patents and Designs Acts to explicitly permit marking of protected products to be done virtually (e.g. by a QR code) to allow owners more flexibility in how they indicate their products are protected.