How do I know if someone is infringing my patent?
If you have a registered patent, it is essential that you can identify when someone is infringing the patent in order to make a relevant claim. Infringement occurs when anyone engages in the acts prohibited by s 60 of the Patents Act 1977. These include:
- Making, disposing , offering to dispose, using or importing the product.
- Using or offering for use a process, when it is known or is obvious that such use without consent would be an infringement of the patent .
- Disposing, offering to dispose, using or importing any product obtained directly by means of a patented process.
Patents are national rights, and it is therefore essential that any prohibited action occurs within the UK. Also, s 60 covers all parties in the supply chain, including the ultimate consumer. The first thing to consider is whether the infringement comes under a claim in the patent specification. It is enough if one of the claims is infringed, but it is worth noting that if you sue somebody, they will usually rely on a counter-claim. This means that you will have to defend your claims of novelty and innovation, which becomes much more difficult in the case of broader claims.
Courts tend to interpret claims by considering what the patentee would have intended, but also with a relevant level or strictness. They are likely to be of the opinion that if the patentee wished to cover a particular variant, he should have stated this explicitly. This attitude highlights the importance of successfully drafting claims, and shows how litigation largely relies on the precise wording of any claims.