A person infringes a patent for an invention if in the United Kingdom a filed a patent is in force and he, without the consent of the proprietor, makes, disposes of, offers to dispose of, uses import or keeps an unpatented product.
Where the invention is a process, there is infringement if a person uses or offers it for use when he knows, or it is obvious to a reasonable person in the circumstances that its use in the United Kingdom without the consent of the proprietor would be an infringement of the patent.
There is infringement where, in the case of an invention which is a process, a person disposes of offers to dispose of, uses import, keeps any product which was obtained directly by means of that process.
A person infringes a patent if in the United Kingdom he supplies or offers to supply any of the means relating to the essential elements of the invention for putting the invention into effect when he knows or it is obvious to a reasonable person in the circumstances that those means are suitable for putting and are intended to put the invention into effect in the United Kingdom.
The validity of the patent itself may be raised in infringement proceedings. If it is successfully challenged there is no infringement. Accordingly, the scope and extent of the patent may require to be interpreted in proceedings for infringement.
In many cases, it will be obvious whether or not there has been an infringement. However, in other cases, elements of the above definition may arise which may lead to issues of interpretation. The may be difficult issues of interpretation regarding the scope of the patent and what exactly is or is not protected.
The invention for a patent for which an application has been made or granted, shall unless the context otherwise requires, be taken to be that specified in the claim of the specification as interpreted by the description and any drawings contained in that specification. The extent of protection is determined accordingly.
The patent is a public document and its interpretation is objective. The claim in the patent, the patent claim, must be interpreted. There are two broad approaches. A literal approach assists certainty. A purposive approach looks at the purpose or reason for the claim. In this case, a literal variation in the patent relative to the language used, would not suffice to escape infringement. The difficulty with this approach is that it is more uncertain to apply.
The position is considered from the perspective of a person skilled in the art. The hypothetical person so skilled, is presumed to be unimaginative with the general common general knowledge available to a person in the field at the date of filing. He will pose obvious questions but not question general assumptions.
The person is taken to have ordinary knowledge in the relevant field together with sufficient knowledge of patent law to allow him read and interpret the patent. The hypothetical person is incapable of invention. The matter is effectively dealt with by expert evidence. There may be a conflict of evidence.
The following factors are relevant
- does the variation materially impact on the way the invention works?
- would the absence of variance have been obvious at the date of publication of the patent to a skilled reader?
- would a skilled reader have nonetheless understood from the claim that the patent holder intended that strict compliance with the primary meaning was required was required?
In broad terms, the onus is on the patent applicant to define his invention. If he does not clearly define it, he runs the risk that a variant may be found to be outside the scope of the patent protection.
Defences
There are defences to an infringement of patent. They include acts done for
- a private non-commercial use
- experimental uses
- making up of pharmacy medicine extemporaneously for an individual
- working or serious preparations for work before the priority date.
The exception is for works done privately for non-commercial purposes and works done for experimental purposes relating to the subject matter of the invention. The experiment must be to test the hypothesis or to seek to discover something unknown. The experimental use defence is not limited to academic research. However, the purpose must be to ascertain something that is not already known.
A person infringes a patented product, if he makes the product. Repairing a product is permitted. Making the product is a matter of fact in the circumstances. There may be a fine distinction between repair and making in some circumstances. Where the part being replaced is ancillary rather than a principal component, it is more likely to be repair.
Where a patent is granted for an invention a person who in the United Kingdom before the priority date does in good faith an act which would constitute an infringement if the patent were in force or makes in good faith effective and serious preparations to do such an act, has the right to continue to do the act notwithstanding the grant of the patent.
There is an exception for ships and airplanes in transit. Acts done on ships, vehicles aircraft temporarily or unintentionally in the United Kingdom, its waters or airspace are covered by the exception. It applies in relation to the use of products and mechanical and other parts of the ship.
There were exceptions in ease of farmers pursuant to EU directive. They are intended to protect customary rights for seeding at harvest and breeding of animals. A farmer is permitted to undertake certain of these activities, provided he pays equitable remuneration to the originator of the seed. The other exception allows a farmer who was brought an animal or animal reproductive patented material to breed that animal provided that the farmer is not a breeder as such.
There is an exception for acts necessary for carrying out clinical trials in order to obtain a marketing authorisation for a generic version of existing medicinal products for human or animal use once the exclusivity period protecting the original clinical data has expired. The purpose is to facilitate the production of generic medicines
The Crown has the right to use a patented product or process subject paying compensation by way of a reasonable royalty.
There are provisions for compulsory licenses where patents are not being worked in the UK and this is preventing the development of other products. It is not available once the patent is being worked in the UK.
Once patent has been sold and placed on the market into free circulation within the EEA, the patent holder’s rights are exhausted. A purchaser may sell the product in accordance with EU free movement rules in the European economic area
