9.5.1 Acts of infringement
Section 60(1) of the Act provides that a person infringes71 a patent if they do any of the following acts in the United Kingdom without the consent of the patent proprietor while the patent is in force:
- (a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;
- (b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent;
- (c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.
Section 60(2) provides that a person also infringes72 a patent if, while the patent is in force and without the consent of the patent proprietor:
he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.
These provisions are intended to reflect the corresponding provisions (Articles 25 and 26) of the Community Patent Convention (even though that convention never came into force).73 Accordingly, U.K. courts have had reference to the decisions of courts of other states that were parties to that convention in interpreting these provisions.74
English law also recognizes accessory liability of persons who either procure others to commit acts or have formed a common design with others to do acts, which amounts to infringement.75
Section 61 of the Act provides the right of a patent proprietor to bring proceedings in the court (e.g., the High Court in England and Wales)76 in respect of any act alleged to infringe the patent. An exclusive licensee77 of the patent also has the right to bring proceedings in respect of any infringement committed after the date of the license.78 The patent proprietor or an exclusive licensee also has the right to bring proceedings, after grant of the patent, in respect of acts committed after the publication of the application for the patent if they would have infringed the patent had it been granted.79
Claims may also be brought in respect of threats to commit acts of infringement when no act of infringement has yet been committed – so-called quia timet actions. Such claims will only succeed if, at the date proceedings are issued, there was a sufficiently strong probability – a concrete, strong and tangible risk – that an injunction would be required to prevent the defendant from infringing.80