Q&As

What are the considerations when threatening to sue for patent infringement?

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Published on LexisPSL on 04/12/2013

The following IP Q&A provides comprehensive and up to date legal information covering:

  • What are the considerations when threatening to sue for patent infringement?
  • What's wrong with saying 'I'm going to sue you if you don't stop this'?
  • Basic principles
  • Risk analysis
  • Practicalities
  • Be specific
  • Lawyers

What are the considerations when threatening to sue for patent infringement?

What's wrong with saying 'I'm going to sue you if you don't stop this'?

English patent law does not allow a patent owner to freely contact market participants and intimidate them by threatening to sue them, even if the owner is convinced that its patent is being infringed. Patent rights are powerful registered rights that last a long time and the law is concerned that these rights should not be abused.

Basic principles

In the UK, the main piece of legislation for each IP right contains provisions dictating what threats are or are not allowed to be made without exposing the threatener to liability for making those threats. Some IP rights are excluded from such a regime, but not many, the most notable one is copyright. There are currently no threats provisions in relation to copyright, but it, along with most other IP rights, is the subject of an ongoing Law Commission consultation. The results of that consultation were published in April 2014 and are addressed in more detail in our full Practice Note on the subject of threats of patent proceedings.

Typically, the legislation

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