ENFORCING PATENT RIGHTS
Many federal appellate judges . . . approach patents with the kind of sus-
picion and hostility that a city-bred boy feels when he must traverse a jun-
gle full of snakes. . . . All patents look more or less strange and
threatening to them; and since they are heavily armed with the power of
the US Government, they frequently get the idea that it's their duty to kill
everything that moves in this dangerous land.
Abe Fortas: The Patent System in Distress
|What Constitutes Infringement?||154|
|Infringement in the United Kingdom||155|
|Before the 1977 Act||155|
|Case Law and Statute Law||156|
|Infringement under the 1977 Act||158|
|Infringement in the USA||160|
|Procedure in the United Kingdom||163|
|Who May Sue?||168|
|Procedure in the USA||169|
|Procedure in Continental Europe||172|
|Procedure in Japan||174|
Once a patentee has obtained a granted patent, and done whatever is necessary to keep it in force, what can he do with it? As we have seen in Chapter one, a patent does not give the patentee the right to practise his invention, but only to prevent others from doing so. Although this right is, in the United Kingdom, granted by the Crown, it is not up to the Crown to enforce it. Infringement of a British patent is not a crime for which one can be prosecuted, but a tort, a civil wrong for which one can be sued in the civil courts. Essentially, the right given by a patent is the right to sue for infringement.
While this is true for all countries having an Anglo-Saxon legal system, and also for many others, there are nevertheless a number of countries in which patent infringement is a criminal offence, either generally or in special circumstances, such as when there is deliberate and wilful infringement.