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A patent owner has to prove two elements before it can secure an infringement finding (and then an injunction, damages, etc) from the court. First, the patent owner has to prove that the alleged infringer has been engaging in particular commercial activities. Second, the patent owner has to prove that the things the infringer is dealing in fall within the technical claims of the patent. This Practice Note is about the commercial activities, particularly the less straightforward ones. For more details about proving infringement in the technical sense, see Practice Note: Patent infringement.
There are several different commercial activities that could give rise to a finding of patent infringement. Deciding which type of infringement is happening matters. First, it affects how a patent owner has to present its case in its documents when launching infringement proceedings. Secondly, it can affect which of the supposed infringers are legally deemed to infringe in the UK because their activities happen in the UK. Thirdly, once a company is found to infringe, the type of infringement in which it is engaged may affect how much compensation it must pay to the patent owner for infringing.
Direct infringement is the closest dealing with the product or process that is under patent protection. Direct infringement tends to involve dealings such as manufacturing (in the
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