Exceptions and defences to patent infringement

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

  • Exceptions and defences to patent infringement
  • Statutory exceptions to patent infringement
  • Permitted acts
  • Private and non-commercial use exception
  • Experimental use and Bolar-type exemptions
  • Farmers' exceptions
  • Right to continue non-infringing use (third-party rights)
  • Use begun before priority date (prior use)
  • Lapsed patents
  • Corrected translations
  • More...

Exceptions and defences to patent infringement

A ‘patent’ is a document conferring so-called monopoly rights to an inventor. A patent protects new inventions and may cover aspects such as how things work, what they are made of and how they are made.

A UK patent or European patent designating the UK (EP(UK)) is infringed by doing certain acts in the UK without the consent of the patent owner (the patentee). The infringing acts are set out in section 60 of the Patents Act 1977 (PA 1977) and include making, using and importing a patented product or process. For more information about patent infringement, see Practice Notes: Patent infringement and Indirect infringement of patents.

This Practice Note discusses:

  1. the statutory exceptions to patent infringement set out in PA 1977, including:

    1. ‘permitted acts’ such as private use and experimental use, and

    2. the right to continue non-infringing use (third-party rights)

  2. defences to patent infringement, including:

    1. patent invalidity

    2. consent of the patentee

    3. exhaustion of rights

    4. pseudo defences such as the Gillette defence and abuse of dominant position

    5. partial defences (or restrictions of remedies), and

    6. Crown use

Statutory exceptions to patent infringement

PA 1977 provides for a number of statutory exceptions to patent infringement, namely various permitted acts and the right to continue non-infringing use.

Permitted acts

Certain acts are permitted by PA 1977 notwithstanding that these acts would otherwise infringe a patent. The permitted acts under PA

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