2.6.2 Statements of case
In order to commence proceedings in the Federal Court of Australia for patent infringement or for the revocation of a patent on the grounds of invalidity, a party must file an originating application setting out the form of relief sought.59 Generally, the originating application will be accompanied by a statement of claim or affidavit, setting out further information regarding the basis of the claim.60 The applicant must also file a “genuine steps statement” specifying the steps taken to resolve the issues in dispute prior to instituting proceedings.61 Generally, this is satisfied by a patentee sending a letter of demand before commencement and allowing an appropriate period (which may be only a short period for urgent matters) for the other party to respond. These documents must be served on the other party in accordance with the court rules.62
A respondent in patent infringement proceedings must file a defense to the claim within 28 days of service of the statement of claim.63 However, the timing of the filing of the defense may, in some cases, be varied by order of the court. For example, a respondent may require further time to respond, particularly if they require further particulars of infringement from the applicant prior to being able to respond to the claim.
Alternatively, in certain circumstances, the Federal Court also allows parties to file a concise statement, which is limited to a statement of five pages, setting out the key facts giving rise to the claim, the relief sought, the primary legal grounds and the alleged harm suffered by the applicant.64
Importantly, in Australia, it is possible for an applicant to seek an interim and interlocutory injunction in relation to potential patent infringement. The applicant may approach the duty judge of the Federal Court for orders expediting the filing and service of the originating application and pleadings to facilitate an urgent hearing of the application for interlocutory relief.