Patent infringement
Patent infringement

The following IP guidance note provides comprehensive and up to date legal information covering:

  • Patent infringement
  • Assessing infringement—commercial dealings (infringing acts)
  • Assessing infringement—technical matters and claim construction
  • Claim construction/scope
  • The Improver (or Protocol) questions
  • Kirin Amgen
  • Actavis—a two-step approach to infringement and the introduction of the doctrine of equivalents
  • Diagrams and numbers or reference numerals
  • Numerical ranges claimed in patent
  • 'For' and 'suitable for' claims
  • more

In order to establish that an unauthorised use or dealing in a product or process amounts to infringement of a patent it is necessary to prove that:

  1. a prohibited commercial act has been undertaken in relation to that product or process and has taken place in the territory protected by the patent—the Patents Act 1977 (PA 1977) defines infringement of a patent in terms of commercial acts, such as making a product or using a process

  2. those acts are not exempted—PA 1977 identifies certain permitted, non-infringing acts, such as those done for private, non-commercial, or experimental purposes

  3. the product or process falls within the patent claims granted from a technical standpoint—the court decides whether a patent has been infringed from a technical standpoint, by determining the scope of the patent claims (construing the claims)

This Practice Note examines the first and third of these, ie commercial dealings (infringing acts) and technical matters. The acts that are deemed to be non-infringing in the first place are addressed in Practice Notes: Patent infringement—defences and permitted acts and The experimental use and Bolar-type exemptions to patent infringement.

A claim for patent infringement can only be brought after a patent has been granted. However, once an application for a patent has been published, from that date the applicant has some of the same rights as if the