Patent Infringement & Protection-
Defences and the Remedies

There are two kinds of acts that infringe registered patents under the Patents Act 1977. One refers to infringement relating to patented products or processes, and the other involving acts which do not touch on patented products or processes but nevertheless amount to infringement. These are classified as direct and indirect (or contributory) infringement, respectively.

Direct infringement of patents occur where the invention is a product, if a person without the owner's consent makes, disposes of, offers to dispose of, uses or imports it or keeps it whether for disposal or otherwise. Infringement occurs even if the person involved did not have any knowledge of the infringement. In relation to a process, there is infringement if a person without the owner's consent uses the process or offers it for use in the UK, when it would have been obvious to a reasonable person that its use would amount to an infringement.

Indirect infringement of patents occur when a person supplies or offers to supply any of the means relating to an essential element of an invention for putting the invention into effect when he knows or ought to know that those means are suitable for putting that invention into effect in the UK.

Defences to Infringement

Under section 60 of the Patents Act 1977, the following statutory defences are available:

• where an act is done privately and for purposes which are not commercial, it does not amount to an infringement.
• where an act is done for experimental purposes which relate to the subject matter of the invention there can be no infringement.
• the extemporaneous preparation in a pharmacy of a medicine for an individual in accordance with a prescription given by a doctor does not amount to an infringement.
• in relation to ships - yes boats - an act which consists of the use, exclusively for the needs of a relevant ship, of a product or process in the body of such a ship or its machinery, tackle or apparatus or other accessories in a case where the ship has temporarily or accidentally entered UK waters, does not amount to an infringement. Similar protection also extend to aircraft, hovercrafts and vehicles.

Remedies for Patent Infringement

An aggrieved patentee may claim the following remedies in court based dispute resolution:

• an injunction to prevent further infringements that led to the dispute in the first instance;
• damages to compensate for loss suffered as a consequence of the infringement or an account of profits made by the infringer as a result of the infringement;
• an order that the infringing articles that are the subject of the dispute be destroyed or delivered up;
• a declaration that the patent was valid and infringed.