Protecting your Patent from infringement in the United Kingdom
The knowledge economy demands more inventive ideas and concepts to improve the existing features of the product or to build new products. With globalization, the business must develop such an idea or concept that solves a technical problem in an unexpectedly new or better way. If it is making it, then it is highly imperative to take adequate and timely steps to protect its creative idea, concept, or knowledge by converting it into a proprietary technical advantage by patenting it.
Patents give an exclusive right to the inventor for his invention. The invention can be a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application in the UK. The patent in its form gives the right to the inventor to commercially exploit the invention to fetch the investment being incurred upon the R&D. This right also provides the owner an exclusive right to prevent others or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported, or sold by others without the patent owner's consent.
Guide to Patent Infringement
An important aspect with regards to patent protection is the effective guide to patent infringement around the world. For an inventor, it is very important to be well aware of the overview of the law and the effective implementation of that law. The inventor should also be well aware of the judicial system and what is the procedure for seeking judicial interventions in case of any infringement suit. In this piece, we will discuss the procedure being adopted in the United Kingdom (UK), the overview of the legal system, and the procedural aspects.
The structure that governs patents is the Patent Act 1977 setting out the rights of the patent holder and the remedies governing the patents in the UK. Also, the Patent Rules 2007 deals with procedural aspects of patent filing at the UK Patent Office. In the same patent office, one can file the patent infringement suit and the challenge to the validity of the patent, the procedure of which are specifically mentioned in the Patent Rules 2007. The patent rights in the UK are governed by the Civil Procedure Rules which apply specifically to England and Wales and not to Scotland and Northern Ireland.
The procedural aspect of the patent remains the same as in other countries. The invention has to be new, involving inventive steps and industrial application. Even after Brexit, the patent can be awarded either through the UK Intellectual Property Office or with the European Patent Office covering 20 years.
As in other countries, when another party uses the invention without authorization, it will amount to infringement. Under the Patent Act, it specifies that the patent will be infringed if it is granted and in force and without consent. Section 60 states that the subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say—
(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.
If that invention is used for non-commercial, research, anti-terrorism, experimental medicines, and related purposes, then there will be no infringement. The Court explains this in the case of Corvalve Inc v Edwards Lifesciences AG  EWHC 6 (Pat) and observes that the patents are allowed to encourage scientific research while still protecting the legitimate interest of the patentee.
Similarly, Section 60(2) allows the patent proprietor to prevent an unauthorized person from supplying or offering to in the United Kingdom means relating to an essential element of the invention when they know, or a reasonable person would have known, that the element was suitable for and intended to be used to put the invention into effect in the United Kingdom
The cases are heard before the Patent Courts or before the Patents County Court, depending on the value of the cases. The procedure involves the facts, documents, and cross-examination by the court. The court can include a temporary or permanent injunction or damages or legal cost if an infringement is proved.
Author: Saransh Chaturvedi (an advocate) currently pursuing LLM from Rajiv Gandhi School of Intellectual Property Law (IIT Kharagpur). In case of any queries please contact/write back Global Patent Filing us at firstname.lastname@example.org.