Patent Infringement

Infringement under United Kingdom patent law is defined by Section 60 of the UK Patents Act 1977 (as amended), which sets out the following types of infringement.
  • By the supply, or offer to supply, in the United Kingdom, a person not entitled to work the invention, with any of the means, relating to an essential element of the invention, for putting the invention into effect, when it is known (or it is reasonable to expect such knowledge) that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
  • Where the invention is a process, by the use, or offer for use where it is known that the use of the process would be an infringement. Also, by the disposal of, offer to dispose of, use or import of a product obtained directly by means of that process, or the keeping of any such product whether for disposal or otherwise.
  • Where the invention is a product, by the Making, Disposing of, Offering to dispose of, Using, Importing or Keeping a patented product.
To defend a claim of infringement, an accused infringer generally will assert one or more of the following:"
  • The accused infringer has obtained a license to the patented technology
  • The patent holder is infringing patent rights belonging to the accused infringer (this is not an actual defense to the infringement claim but it is a very common legal strategy that often results in a cross-licensing agreement rather than an infringement lawsuit).
  • The technology in question does not in fact practice the patent
  • The patent, and in particular the individual claims asserted against the infringer, are invalid because they were not novel, or were obvious in light of the state of the art, at the time patented. Often this is done by presenting evidence not originally considered by the patent office that the invention had been publicly disclosed or was in use before it was patented.
  • The patent is invalid due to some other collateral defect to make the patent invalid or unenforceable.
This can occur for instance when a device is claimed in a patent and when a third party supplies a product which can only be reasonably used to make the claimed device. This right to obtain provisional damages requires a patent holder to show that the infringing activities occurred after the publication of the patent application, the patented claims are substantially identical to the claims in the published application, the infringer had "actual notice" of the published patent application.

A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent.

No infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C. § 154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance.

In United States law, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. Under certain jurisdictions, there is a particular case of patent infringement, called "indirect infringement." In the United States and others that use a "peripheral claiming", that means that the infringing technology embodies each and every of the elements listed in the claim. The test varies from country to country, but in general it requires that the infringer's product (or method, service, etc) falls within one or more of the claims of the granted patent.

If the technology incorporates all of a claim's elements (and possibly more) it is said to "read on" the claim; if a single element from the claim is missing from the technology it does not read on the claim and thereby does not infringe the patent with respect to that claim. Any party that manufactures, uses, sells, or offers for sale patented technology, during the term of the patent and within the country that issued the patent, is considered to infringe the patent. Should a person utilize that invention, without the permission of the patent proprietor, they may infringe that patent. A patent provides the proprietor of that patent with the right to exclude others from utilizing the invention claimed in that patent.