False patent marking has come to prominence in intellectual property circles due to a recent boom and bust cycle of litigation in the US. This article examines this cycle and its ancient roots from an Australian perspective. In the absence of false patent marking data in Australia, this article uses the causative legal mechanisms of the US cycle to conduct a natural experiment on Australian false patent marking provisions.
This natural experiment gives insight into the likely prevalence and potential effects of false patent marking in Australia.Consideration is also given to the harms created by false patent marking. Previous analyses discussed in this article posit that false patent marking negatively affects competitive markets and consumers. However, it is argued that from a realistic commercialisation and consumer perspective, these harms may be exaggerated. An analysis of the utility of Australian false patent marking laws is also undertaken,
based on the evidence at hand and comparative legal reasoning. This analysis
indicates that deficiencies in Australia’s false patent marking provisions do exist. A call is made for further empirical research into the incidence and effects of false patent marking in Australia; it is possible that costs created by false patent marking are not being recognised. However, since no empirical or recent anecdotal data indicates false patent marking presents a serious issue, and Australian provisions comply with basal aspects of what has been described as an ‘optimal’ enforcement system, no major reforms are suggested at this stage. Minor amendments are recommended to simplify the enforcement of the current provisions and improve trust in the patent system. It is further recommended that a watching brief is kept on this area of patent practice.