Patent infringement is a legal tort and the actions that make up the tort are set forth in section 60 of the Patents Act of 1977.
The patent holder or, alternatively, an exclusive licensee of the patent can bring an action for infringement.
To determine if there has been a violation, it is necessary to consider:
1. The scope of the invention that is protected by the patent (or patent application).
2. Whether the activities of the potential infringer in connection with the invention are included in sections 60 (1) or (2) of PA 1977.
3. If there are legal exceptions or other defenses available.
There are two types of infraction:
1. Direct infringement, that is, acts carried out directly in relation to patented products or processes (Article 60 (1), PA 1977). Covers activities in the UK related to: (I) Patented products; (ii) Use of proprietary processes; (iii) Offer proprietary processes for use; and (iv) Products obtained directly through patented processes.
When the patented invention is a product, a person infringes the patent (Section 60 (1) (a), PA 1977) when: (I) Manufactures the product; (ii) Dispose of the product; (iii) Offer to dispose of the product; (iv) Use the product; (v) Import the product; or (vi) Preserve the product (either for disposal or otherwise).
2. Indirect infringement, means acts carried out indirectly in relation to patented products or processes. A person indirectly infringes on a patent (Section 60 (2), PA 1977) where all of the following apply:
to. Supplies or offers to supply in the UK to a person any of the means related to an essential element of the patented invention to put the invention into practice.
B. Either you know or it must be obvious to a reasonable person in the circumstances that the means are adequate to practice, and are intended to practice, the invention in the UK.
vs. The person supplied or to whom the offer is made is not a licensee or other person entitled to exploit the invention.
Section 60 (5) of PA 1977 establishes a series of exceptions to infringement under sections 60 (1) and (2) of PA 1977.
In addition to the infringement exceptions, it is also possible to defend a patent infringement claim by challenging the validity of the patent / patent registration on the basis that:
1. The invention does not meet the applicable legal criteria for patent registration;
2. There is prior art and the invention was not new at the time of registration and therefore should not have been granted in the first place.
Alternatively, it is also possible to defend a claim of patent infringement by conducting a technical analysis of the patent specification and demonstrating that your product falls outside the scope of the patent specification.