Stage 3 – Defences to a Patent Infringement Action
During a Patent Infringement Action the infringer will certainly want to defend your claim and some of the defences the infringing party may rely on are as follows:
Patent has expired
In order to keep your patent you have to renew it on the 4th year of the filing date and you must renew it every year after that. You can renew for up to a maximum of 20 years. Therefore if the other party shows that the period of patent protection has expired, this may be used as a defence because there is not protection in place.
Invalidity
One of the most common defences of a patent dispute is to show that the patent is invalid and to claim that the patent should be revoked. If the court rules that the patent is valid, to avoid claims of invalidity and revocation a certificate of contested validity is available to the patentee for use if problems arise in the future.
Limited scope of patent claims
Even if the patent is valid if a person shows that the patent claims do not cover the alleged infringement; that in itself is a defence.
Private, non-commercial use
According to section 60(5) (a) it is a defence to show that the invention was used privately and for non-commercial purposes.
Experimental Purpose
According to section 60(5) (b), it is a defence to show that the invention was used for experimental purposes.
Innocent Infringement
According to section 62(1) if the defendant can show that (a) he did not know and (b) had no reasonable grounds for supposing…that the relevant patent existed.
Stage 4 – Remedies
The remedies for patent infringement include the following:
*Injunction
*Delivery or an account to profit
*Delivery up or destruction of an infringing product
*A declaration that the patent is valid.
If you think a patent has been infringed or have been accused of infringing a patent you should seek legal advice immediately.
