Australian courts have recently taken a dim view of competitors claiming that the patentee has made unjustified threats of patent infringement. It is now clear that, in relation to the assessment of damages, it is necessary for the defendant to show any threats made by the patentee were directly the cause of loss or damage to the defendant. In Mizzi Family Holdings
Australian Courts have repeatedly rejected1 the notion that what the applicant says during prosecution can be held against the patentee during later litigation. However, the general absence of a doctrine of prosecution history estoppel in Australian practice should, in no way, be taken as tolerance by the Courts for representations which stray into misdirection.