Patent Infringement
The whole reason to have a patent is to have a monopoly in the invention described in the patent specification. If someone uses a patented invention then they are said to ‘infringe’ the patent.
If a patent is successfully enforced then the patentee can be awarded an injunction against further infringement, damages or an account of profits, amongst other benefits.
Patent infringement law varies between countries, but a patent is infringed in the UK under Section 60(1) of the Patents Act when:
(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;
(b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent.
(c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.
A patent is also infringed (subject to various criteria) in the UK when a person supplies or offers to supply and ‘essential element of the invention’.
Patent Claims and Infringement
Patent claims are the part of the granted patent that define the monopoly afforded by the patent. Normally a patent is infringed when all the elements of one of its ‘claims’ are found in an allegedly infringing product or process. For example, if a patent claim were to read:
A bicycle comprising features X, Y and Z.
Then, in general, the patent would be infringed by a bicycle having features X, Y, Z, but would not be infringed by a bicycle having only features X and Y or by a bicycle having only features X and Z. (Of course an exception to this might be if the bicycle is supplied as an ‘essential element’ of the invention, in which case a bicycle with only X and Z might in some circumstances be held to indirectly infringe the patent claim).
As all of the elements of a claim must normally be found in the product or process in order for infringement to occur it is important to ensure that only essential elements of the invention are found in the main claim. Otherwise the patent may be easy for competitors to circumvent it.
Patent Enforceability
It is a myth that for the common man patents are unenforceable and therefore patent protection is not worth pursuing. It is a very bad reason to not file a patent application for a new invention.
Yes, patent litigation can be relatively expensive, but in recent years there has been reform after reform to bring litigation costs down.
Normally no one, not even large companies, wish to enter a patent dispute and a letter before action often puts a stop to any infringement. N.B. Any correspondence threatening an action for patent infringement must be carefully worded, as ‘unjustified threats’ of patent infringement can be an actionable offence.
Further, if a patent is commercially valuable then there should be a way to enforce it. Either the patentee should making enough from the invention to enforce it or alternatively the patent could be licensed to a large competitor of the alleged infringer, who might be happy to enforce it.
Also schemes such as patent infringement insurance exist, and there are persons who will fund a patent infringement action for a cut of damages awarded.
The message is that if you do have a great new invention, don’t be put off from filing a patent application owing to the misapprehension that any patent will be impossible to enforce. Furthermore, if you suspect someone is infringing your patent rights then do not be put off from taking steps towards enforcing them.
Please contact us for a free consultation or more information on patent infringement.
