Patent infringement

A patent does not give you an automatic right to exploit your invention. A patent gives you the right to prevent or stop others from making, using, exercising, offering to dispose of, disposing of or importing your patented invention and you may institute proceedings against a person who does any of these things.

Proceedings for infringement may be instituted by the patentee or an exclusive licensee under a compulsory licence, but all licensees have to be notified of the infringement proceedings and are entitled to intervene as co-plaintiffs. The defendant (ie. the alleged infringer) may rely, as a defence, on any ground on which a patent may be revoked and, as a counterclaim, the defendant may apply for the revocation of the patent. One of the most important grounds of revocation is that the invention was not new when the patent application was filed. A patent can also be revoked if the specification is inadequate, for example if the specification is not clear, or does not fully describe the invention.

If you require further details, please click here to download our pamphlet on Patent Revocation.

If the plaintiff is successful in infringement proceedings, the plaintiff is usually entitled to:

• damages
• an interdict (ie. an injunction) ordering the defendant to refrain from further infringement
• an order for delivery up or destruction of infringing products or articles
• costs
• in lieu of damages, the plaintiff may claim an amount calculated on the basis of a reasonable royalty.

If you require more information, please click here to download our pamphlet on Patent Infringement Actions.