Making groundless threats of proceedings for infringement of a patent: section 70 of the Patents Act 1977

Further to a recent inquiry as to whether any action could be taken against persons making groundless threats for infringement of a patent, I attach a recent decision of Judge Hacon QC, the case of Brundle v Perry [2014] CC 13 P 00980 (judgment handed down on 6 March 2014), in which a Claimant wholesaler of metal products and fences, brought proceedings against the Defendant, Mr Perry, as a company aggrieved by the threats of proceedings for infringement. The case is a good explanation of the procedure and issues in relation to the making of groundless threats.

It is possible for either party in such proceedings, to file a request at the Intellectual Property Office (the IPO) pursuant to section 74A of the Patents Act 1977, for an opinion, (in this case as to whether the Claimant’s suppliers of fences) had infringed the Defendant’s patent.

The test as to what constitutes threat of proceedings for patent infringement is set out in paragraph 22, 23 and following, of Judge Hacon’s judgment. In this case the threat in the Defendant’s letter was found to be ‘excplicit’and plainly contained a threat by the Defendant within the meaning of section 70 of the Act.

The Judgment is attached below:

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