Monday, 15 September 2014

Do people know that patents exist? A judge opines

OOO Abbott & Another v Design & Display Ltd & Another [2014] EWHC 2924 (IPEC) is a 4 September 2014 ruling of Judge Hacon in the Intellectual Property Enterprise Court, England and Wales, on the subject of calculation of an account of profits after a patent has been held infringed.

This blog post focuses on just one small issue arising in this case: the availability of the remedies of damages and an account of profits against an ostensibly innocent infringer.
  1. Section 62(1) of the Patents Act 1977 states:
  2. "In proceedings for infringement of a patent damages shall not be awarded, and no order shall be made for an account of profits, against a defendant or defender who proves that at the date of the infringement he was not aware, and had no reasonable grounds for supposing, that the patent existed; and a person shall not be taken to have been so aware or to have had reasonable grounds for so supposing by reason only of the application to a product of the word "patent" or "patented", or any word or words expressing or implying that a patent has been obtained for the product, unless the number of the patent accompanied the word or words in question."
So, to what extent is a person said to be unaware, and of having no reasonable grounds for supposing, that an infringed patent existed?  Judge Hacon had this to say:
  1. ... I am not satisfied that Design & Display has established the necessary lack of knowledge or reasonable grounds for supposing that the Patent existed. In cross-examination Mr Lloyd [managing director of Design & Display] said that he had only heard of patents because he was a local historian and he did not know whether his colleagues knew what a patent was. While it is easy for those whose working lives are concerned with patents to over-assume how much the general public know about patents, I think most individuals, such as Mr Lloyd and presumably his colleagues, will have heard of the concept of patents and will have on board the basic notion that you can get one to protect your idea. It seems to me unlikely that an interest in local history is needed to know that much".
Duly noted!

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