Threats S70 Flashcards
S70 deals with what?
Threats of infringment proceedings
Which section deals with threats of infringment proceedings?
S70
What conditions must be fulfilled for a threat of infringement proceedings to be deemed to have been recieved?
A threat has been issued if
A reasonable person on reciept of a communication percieves:
A patent exists
AND
A person intends to bring proceedings for infringment of a patent by an act in the UK or intent to infringe in the UK
What section deals with Actionable threats?
Section 70A
What does Section 70A deal wtih
Actionble threats
If a threat is deemed to have been issued under S70 what conditions does it need to fulfil to become an actionable threat?
A threat is actionable by anyone aggrieved by the threat
UNLESS
the alleged infringement or intent is a product, and the act is manufacturing or importing said product
OR
Where the alleged infringment or intent is a method, using the method
AND
If exempt under the above all threats made to the same person are exempt eg disposal, use and keeping
OR
if the threat is not an express threat and is contained in a permitted communication
What section details a permitted comunication
S70B
What is a permitted communication?
A permitted communication is if all the communication is nescessary for a permitted purpose and the person believes it to be true
INCLUDING
Giving notice a patent exists
AND
Discovering if or by whom a patent is being infringed
AND
Giving notice that a person has a right in a patent and by another person’s awareness the right is relevant to any proceedings that may be brought in respect of the patent. (this last one is dangerous and rarely used)
AND
Any other purpose that the court deems fit
What is not a permitted purpose
Requesting someone ceases commercial activity in relation to a product or process
OR
Requesting a person delivers up or destroys a product
OR
requesting a person gives an undertaking relating to a product or process
What is deemed nescesary information for a permitted purpose?
Notice a patent is in force, or an application has been filed
OR
details of a patent or published application, or a right in it that are accurate and don’t mislead
OR
identification of a product that is being manufactured or imported or a process that is being carried out and therefore excluded under S70A
What are the defences for actionable threats?
That the actions for which the proceedings were threatened constitute and infringement
OR
To show that despite taking reasonable steps the person making the threat has not been able to identify anyone importing or manufacturing a product or carrying out a process
AND
Teh person notified the recipient before or at the time of making the threat of the steps taken.
How does a professional adviser indemnify themselves against actionable threats provisions
A professional adviser is not liable for a threat if the adviser is acting on the instructions of another person and the professional adviser identifies the person for whom he is acting
What constitutes a professional adviser in the context of section 70D
A professional adviser, to be not subject to proceedings for actionable threats must fulfill the requirements of Section 70D(3) be acting on another person’s instructions and identify this other person in the communication
AND
is acting in a capacity of a legal adviser as a trademark or patent attorney
AND
is regulated in the provision of legal services, TM or patent attorney by a professional body (membership of a professional body or license to practice)
