What is a Patent?
Patents provide inventors with a legally protectable monopoly over their inventions and protect new and innovative technical features of products and processes. They normally last for a limited period of 20 years depending on the country.
To qualify for patent protection, an invention must be:
- Involve an innovative step;
- Be capable of industrial application; and
- Not specifically excluded from protection.
To obtain a patent, an application for a patent needs to be filed; this will normally be with the patent office of the country where the inventor works.
Patents can provide a high level of protection and are highly important in some industries; this is clearly seen in the case of pharmaceutical companies, who spend millions of pounds and extensive time on research and development.
The process for registering a patent is not easy and can be expensive. It also exposes a product to competitors through public disclosure of the technology behind it without the competitor breaching the patent.
How Can I Make a Claim for Patent Infringement?
To make a claim, you must be either the proprietor of the patent or an exclusive licensee. There are various acts that constitute an infringement. There is a slight distinction between the claims that can be made regarding a patented product or a process.
For a patented product, the offences are:
- Making, disposing of, offering to dispose of, using, importing or keeping the product.
For a patented process, the offences are:
- Using the process or knowingly offering the process for use; and
- Disposing of, offering to dispose of, using, importing or keeping any product obtained directly through the patented process.
These offences directly infringe on the owner of the patent’s rights. A claim can also be made if someone indirectly infringes on the patent proprietor’s rights. This is where someone supplies or offers to supply in the UK a person with any of the means for putting the invention into effect, relating to an essential element of the invention.
There is a knowledge requirement for this offence meaning that the person who is accused must have known or it would have been obvious to a reasonable person that the means are suitable for putting the invention into effect in the UK and are intended to do so.
The essential element of patent infringement is that it is done without the permission of the proprietor.
How do I Defend a Patent Infringement Claim?
If you are a defendant in a patent infringement claim, you may be able to defend the claim using one of the statutory exceptions under the Patent Act or other defences. For example, acts done privately do not constitute patent infringement; they must be done in a commercial context. Other defences include experimental use and prior use.
What Remedies are Available in a Patent Infringement Case?
Remedies for patent infringement include:
- An interim injunction can be obtained before trial to stop the defendant from continuing to use the patented product or process until the outcome of the trial;
- A final injunction to prevent the defendant from using the product or process from that point on;
- An order for the delivery up or destruction of the infringing goods;
- The claimant may seek damages for loss of sales or damage to goodwill;
- An account of profits which provides for the defendant to pay to the claimant a proportion of the profits it made because of the infringement; and