Exceptions and defences to patent infringement

A ‘patent’ is a document conferring so-called Monopoly rights to an inventor. A patent protects new inventions and may cover aspects such as how things work, what they are made of and how they are made.

A national UK patent or European patent designating the UK (EP(UK)) is infringed by doing certain acts in the UK without the consent of the patent owner (the patentee). The infringing acts are set out in section 60 of the Patents Act 1977 (PA 1977) and include making, using and importing a patented product or process. For more information about patent Infringement, see Practice Note: Patent infringement.

This Practice Note discusses:

•
the statutory exceptions to patent infringement set out in PA 1977, including:
1. ◦
  ‘Permitted acts’ such as private use and experimental use, and
2. ◦
  the right to continue non-infringing use (third-party rights)
•
defences to patent infringement, including:
1. ◦
  patent invalidity
2. ◦
  consent of the patentee
3. ◦
  exhaustion of rights
4. ◦
  pseudo defences such as the Gillette defence, the Formstein defence, and abuse of dominant position
5. ◦
  partial

Jurisdiction(s):

United Kingdom

Key definition:

Infringement definition

What does Infringement mean?

A copyright work is infringed when anyone other than its owner or licensor performs or authorises the performance of one of the 'restricted acts' set out in the Copyright, Designs and Patents Act 1988 without permission, such as copying, issuing copies to the public, renting or lending to the public, performing or playing in public, communicating to the public or making an adaptation. Infringement does not need to involve the complete work; any use of a 'substantial part' will suffice.

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