Law Notes Intellectual Property Law Notes
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
The following is a more accessible plain text extract of the PDF sample above, taken from our Intellectual Property Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Scope of the monopoly
Infringement
Article 64 EPC
(1) A European patent confers on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting states in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State
(2) If the subject matter of the European patent is a process, the protection conferred by the patent shall extend to the products directly obtained by such process
(3) Any infringement of a European patent shall be dealt with by national law
Patent infringement – evidential inquiry – difficult to generalise beyond a particular case
It has been accepted that the scope of the patent monopoly should not be limited to situations where the infringing act takes place in relation to a product/process which is exactly the same as the patented invention
Extending the scope of the monopoly beyond a strict reading of the claims
BUT how broadly can a patent be read?
Also, not all of an invention needs to be taken for a patent to be infringed
Q – how much does though?
NOTE – EPC says that questions of infringement are better dealt with by national courts
But the close relationship between validity and infringement – means that the decision of the EPO have impacted on British law of infringement
Types of infringing activity
Whether the activity falls within the scope of the patent monopoly
Whether D has a defence
Types of infringing activity
See s60 PA 1977
Patent law – distinguishes between direct and indirect infringement
Direct infringement – some immediate engagement with the patented product or process – s60(1)
Indirect infringement – a person facilitates the act of infringement – s60(2)
The activity must be carried out without the consent of the patentee (no licence), occur within the UK and take place during the duration of the patent
Direct infringement
s60(1) – wide array of activities – making/using a product or process through to sale/import of the product
Basically most of the commercially valuable activities are within the owner’s control
Rights given to an owner depend on whether the patent is for a product, a process or a product obtained directly from a process
S60(1)(a) and (c) - Liability is absolute in relation to a patent for a product or where a product has been obtained directly from a patented process - no need for the patentee to show that the defendants knew that they were infringing
S60(1)(b) - Liability is not absolute in relation to a patent for a process when an infringer uses/offers a process for use – knowledge of the infringer is relevant
Patent for a product
s60(1)(a) – the owner of a patent for a product has the right to make, dispose of (inc the right to sell), offer to dispose of, use, import of keep the product, whether for disposal or otherwise
Absolute liability - intention to infringe is irrelevant to determination of liability but might play a role in relation to the remedy granted by the court
Why is liability absolute?
So that patentees can fully enjoy their monopoly rights
Hmm but property rights are never absolute – limited in terms of duration, subject-matter and types of protected activity --- so there is no reason why infringement should be absolute?
The reverse-infringement test – based on a belief that the novelty examination is a mirror of the test for infringement
Court asks whether if the disclosure was made after the grant, would it have infringed the patent
When considering whether the info anticipates an invention, the intention of the person who made that information public is irrelevant
Novelty is decided objectively
On the basis that novelty and infringement are mirrors of each other, it is suggested that infringement should also be decided objectively
The reverse-infringement test was approved in the UK before 1977 in some decisions
BUT this is no longer the test to determine whether an invention is novel
The test has merely brought conceptual clarity to the novelty examination
The information function performed by the patent system generally
The potential harm that third parties endure as a result of infringement being absolute is mitigated by the fact that as part of the patent process, the invention is made available to the public
This means that third parties are able to access the info and alter their behaviour and thus avoid infringing
Hmm but consider biological inventions which are dynamic – the rationale for strict liability is based on an image of the invention as being static – if inventions are active then a defendant can do little to avoid infringing
United Wire [2001]
Concerned the exclusive right to “make” the product
Few problems have arisen in determining what is meant by right to make a product
An exception – where D repairs/modifies the product
Patent law has recognised that purchasers of patented products should be able to repair and modify those products
Lord Hoffmann – “repair is one of the concepts (like modifying or adapting) which shares a boundary with “making” but does not trespass on its territory”
“as a matter of ordinary language, the notions of making and repair may well overlap. But for the purposes of the statute, they are mutually exclusive”
Before this case, the right to repair had sometimes been based on the idea of implied licence
Lord Hoffmann – concluded that the totality of the work amounted to “making” a new article – because the removal of the meshes and the stripping down and repairing of the frame resulted merely in a component of the patented article “from which a new screen could be [and was] made”
Schutz v Werit [2011] Court of Appeal and [2013] Supreme Court
The case concerned what was the appropriate test for deciding whether an act of reconditioning a patented product constitutes a non-infringing “genuine repair” or whether it constitutes an infringing act of “making the product”
The patent – an intermediate bulk...
Buy the full version of these notes or essay plans and more in our Intellectual Property Law Notes.
IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...
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