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Remedies for Patent Infringement

Written by Aasim Durrani on 15 August 2011

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Section 61(1) of the Patents Act 1977 sets out the various remedies available to a patent holder in respect of infringement. These are as follows:

a) An injunction to prevent the defendant from carrying out an act of infringement;

b) An order to deliver up or destroy the infringing product;

c) An award of damages;

d) An account of profits deriving from the infringement;

e) A declaration stating that the patent is valid and has been infringed by the defendant.

An account of profits will not be awarded in conjunction with an award for damages. Section 62(1) of the Act states that an award of damages or an order for the account of profits may not be made against an infringer who was unaware and had no reasonable grounds for suspecting the patent existed.

Where a patent is already in existence, section 72 allows for the Intellectual Property Office to revoke it on the grounds that the invention in question does not satisfy the criteria for patentability under section 1. Section 75 allows for a patent to be amended without having to revoke it.

Section 70 of the Act exists to prevent a patent holder from making unjustified claims of patent infringement and will leave them liable to being sued if a court is satisfied that the threat is unjustified. Under these circumstances, the threatened party may obtain a court declaration stating that the threat is not justifiable, together with an injunction and an award of damages.

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