Indirect infringement of patents


Sebastian Moore and Daniel Pearce

Until now, there was little guidance from the UK courts on the scope of indirect (or contributory) patent infringement under section 60(2) of the Patents Act, 1977 (PA77).

This provision—which originates from article 26 of the Community Patent Convention and therefore should be interpreted consistently across its signatory states—was recently given a broad interpretation by the Court of Appeal in Grimme Maschinenfabrik GmbH & Co KG v. Derek Scott (t/a Scotts Potato Machinery).

S60(2) PA77 allows patentees to take action against suppliers of goods that are not themselves infringing, but that are used to infringe a patent, either in modified form or in conjunction with other goods. It says:

“Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the 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.”

patent infringement