FD1 - Threats Flashcards
What is the quick checklist for commenting on threats in FD1?
T A P D - Tapped
Has there been a Threat?
Is it Actionable?
Was it in a Permitted communication?
Is there a Defence?
What is the test for a threat?
RRPEPU - Rick rolling people entertains pricks universally
would a Reasonable person
as the Recipient
understand from the communication that a Patent (or app)
Exists
and a person intends to bring infringement Proceedings (anywhere)
for an act done (or which would be done) in the UK
Who is the recipient?
The person to whom a communication is directed
Can a threat be verbal?
Yes
Can a threat be implicit?
Yes
Can a threat be made by mass communication?
Yes - recipient will be a member of the public or of the section of the public to which the communication was directed
Does a threat need to be sent directly?
No - can be a notice on your website
Is the sender’s intention considered?
No - only what would be understood by the recipient
How do you assess if a threat is actionable?
AUMIUPIP - All Unicorns Marry Ignorant Ugly Ponies In Portugal
a threat is actionable by anyone Aggrieved by a threat
Unless it is made in respect of
Making a patented product
Importing a patented product
Using a patented process
and is also not actionable if made to a person Intending to perform one of the above acts
and also is not actionable if made against someone who carries out
a Primary act (manufacture) and threat is made in respect of a secondary act (sale)
What is a permitted purpose?
A communication which:
Gives notice that a patent/application exists,
Discovers by whom or whether a patent/application has been infringed by a primary (making/importing/use of a process) act
Gives notice that a person has a right in or under a patent/application, where a third party’s awareness of the right may be relevant
All information in the communication must be necessary for the purpose and the sender must believe it to be true
Court can deem anything a permitted purpose if it is in the interests of justice to do so
What is definitely not a permitted purpose?
A request to cease doing something in relation to a product or process
Request to delivery up or destroy
Request that a person gives an undertaking relating to a product/process
Can professional advisers be liable for threats?
Yes, unless the adviser is acting on instructions from another person AND they identify that person when the communication is made
What are the defences to threats?
Defences:
Show that the action for which proceedings were threatened does constitute infringement
After reasonable steps, the primary actor has not been identified and the recipient was notified of the steps taken at the time of or before the threat was made
