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What is making?

Written by Ben Evans on 15 September 2010

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Under section 60(1)(a) of the Patents Act 1977 a patent is infringed by the making (without consent of the proprietor) of the product in the UK.

The recent case of Scutz (UK) Ltd v (1) Werit (UK) Ltd (2) Protechna SA (2010) considered the issue of whether the alledgedly infringing acts were the making of a new product or merely the replacement of parts in an old one. The products at issue were intermediate bulk containers (IBCs), basically these feautre an outer protective cage with a removable plastic inner bottle. The defendant's obtained used IBCs, removed the old bottle, repaired the cage, fitted a new bottle and then resold the IBC.

The court held that the test was whether merely replacing parts was sufficient to constitute 'making' under section 60(1)(a), in basis it was whether when the part is removed if what is left forms the whole of the inventive concept of the claim. In this case the court determined that replacing the bottle on an IBC does not constitute 'making' the patented product.

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