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What is the practical procedure for applying for a declaration of non-infringement of a patent under section 71 of the Patents Act 1977?

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Published on LexisPSL on 22/01/2021

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  • What is the practical procedure for applying for a declaration of non-infringement of a patent under section 71 of the Patents Act 1977?

What is the practical procedure for applying for a declaration of non-infringement of a patent under section 71 of the Patents Act 1977?

The potential infringer of a patent may apply for a declaration of non-infringement in order to obtain legal certainty as to whether an act it is already doing or an act it is proposing to do (eg making, using or selling a product or using a process) will infringe the patent concerned. See Practice Notes: Remedies in patent proceedings in particular at section ‘Declaration of non-infringement’ and Negative Declarations.

For further background information, see: Declarations of non-infringement—Introduction: Roughton, Johnson and Cook on Patents [8.164].

In relation to the procedure for applying for a declaration of non-infringement of a patent, see: Procedure before the court: Roughton, Johnson and Cook on Patents [8.176] which states as follows:

'It is possible to apply for a declaration under s 71 before the Patents Court, the Intellectual Property and Enterprise Court and before the

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