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Should Patent Infringement be a Criminal Offence?

Written by Jody Tsigarides on 29 September 2009

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There has been strong debate in recent weeks over whether Patent infringement should be made a criminal offence.

The debate appears to have started over recent comments made by Trevor Bayliss regarding this topic. Trevor Bayliss, who is the inventor of the wind-up radio, has called for Patent Infringement to be made a criminal offence. It is reported that he has written to the Government's Secretary for Business, Lord Mandleson, proposing the same.

The reason for the proposal is that currently patent holders who feel that there patent has been infringed must take civil action. This requires appointing a Solicitor to review the claim, prepare the claim and of course deal with the claim all the way through to trial. Whilst costs can be recovered if successful the patent holder still needs to be able to fund the litigation to trial and the risks are substantial. Due to this many acts of infringement occur without challenge and the money invested by the patent holder (in securing the patent) become pointless.

If Patent Infringement became a criminal offence then this would see the state pay for the case and not the individual inventor/ patent holder.

The call for action is being likened to Copyright infringement which is a criminal offence in certain circumstances, However we must be careful when making this analogy as the two acts are arguably very different. With Copyright infringement of music or videos the infringer is clearly using the works and associated packaging to sell 'fake' copies. The intention therefore is very clear. However with Patent infringement it can be innocent and/ or often requires very subjective review of the act in question by skilled Solicitors or attorneys.

This is certainly an interesting debate and looks likely to run for some time yet.

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