Patents – Defences to Infringement

The main defences

Defences to patent infringement are given under section 60(5) of the Patents Act 1977. This provides a list of situations under which an act that would otherwise be infringement does not actually commit an infringement 

  • Private Use – If the infringing act is done in private and for non-commercial purposes there is no infringement.

  • Experimentation – In general, if the patented item is used to experiment in a non-commercial manner it will be covered by an exception to infringement. For example, if the infringing act is done for experimental purposes relating to the technological area of the invention then there is no infringement. This would be the case if, for example, an older invention was being experimented upon to find new improvements. If, however, a university uses the patented item in an experiment they may find themselves subject to an infringement case if they then turn their research into a product as it would then become commercial.

  • Ships and Aircraft – If the infringing act relates to a use that is exclusively for the needs of a ship or aircraft there is no infringement as long as the ship or aircraft is only temporarily in UK territorial waters. This is to allow aircraft and ships seeking repairs to find a safe port or airport without then finding themselves infringing a patent for importing a specific part. 

  • Pharmacies – the preparation of medicine in a pharmacy for an individual is not patent infringement even tough it may be seen as a ‘disposing’. This could be the case when dealing with patented drugs. 

  • Farmers – where a patent owner has sold a farmer a patented product that will then create a crop, he may not then sue for infringement if the farmer uses the results of that crop to seed another crop on his own land.

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For more information on:

  • Invalidity
  • Prior Use
  • Licence
  • Gillette Defence
  • Remedies