The intrinsic nature of patents has rendered interpretation of patent claims inherently problematic. The central issue that has exercised the courts is the appropriate method of interpretation, particularly on infringement claims. Bainbridge's observations of the intricacies of patent infringement emphasise the fine balance that interpretation must address: "Patent infringement is not measured in terms of whether a substantial part has been taken as is infringement of a work of copyright, but there are difficulties where the invention has not been taken in its entirety by an alleged infringer, or where some feature of the invention has been changed ".
Key Words: Patents, patent infringement, patent interpretation, patent claims, Patents Act 1977, Novelty, Inventive Step, Catnic Test, Obvious, European Patent Convention, EPC.
[...] Merges, Menell & Lemley (2003). Intellectual Property in the New Technological Age. Aspen Michael Pendleton., (2004). Construe Widely and Face Invalidity- Construe Narrowly and Miss Infringment The Dilemma of interpreting Patent Specifications. Electronic Journal of Law Volume 11, No.3 Jonathan Turner., (1999). Purposive Construction: Seven Reasons why Catnic is wrong. European Intellectual Property Review 531. A Rich & W James, (2005). Case Comment Patents: Claim Construction. EIPR. S. Schweitzer (2006). Pharmaceutical Economics and Policy. Oxford University Press. Vaver & Bentley (2004). [...]
[...] A further element of such this compromise would be to scrap the “skilled person” test and require interpretation of patent claims the eyes of the person who is aware of the requirements of the Protocol[50]”. This would go further towards acknowledging that a patentee may not foresee all possible intended uses of the patent while promoting certainty from the third party's perspective. The UK courts seem to be reluctant to change the Catnic test due to arguments of precedent and legal certainty and it would “take a brave judge . [...]
[...] In fact, the Court of Appeal of the Hague addressed this in the Dutch case of Improver[26] and asserted that was circular for patent law to refer the interpretation of patent claims to the person skilled in the as the result requires the skilled person to seek legal advice to determine the purpose of the claims, thereby contradicting the justification for the Catnic test. Moreover, it also “confuses the description with the claims and conflates two different functions of the specification: on the one hand that of disclosing the invention to those skilled in the art; on the other, that of informing lawyers . [...]
[...] Construe Widely and Face Invalidity- Construe Narrowly and Miss Infringment The Dilemma of interpreting Patent Specifications. Electronic Journal of Law Volume 11, No.3 Hollyoak and Torremans (2005) op.cit. Michael Pendleton (2004), op.cit. [1963] RPC 61. Ibid at p.78. Michael Pendleton (2004), op.cit. [1983] RPC 183. Ibid at 243. See for example, the case of A C Edwards Ltd v Acme Signs & Displays Ltd [1990] RPC 621, concerning apparatus for displaying prices at petrol pumps filling station forecourts and Southco Inc v Dzeus Fastener Europe Ltd [1990] RPC 587, which involved a lift and a turn latch for a cabinet door . [...]
[...] Section 60 of the PA defines patent infringement as the doing of any of the following acts without the proprietor's consent: Product invention to make, dispose of, offer to dispose of, use or import the product to keep it (whether for disposal or otherwise) (section 60(1) Process invention to use the process or offer it for use in the United Kingdom when the person concerned does so knowing, or where the circumstances would be obvious to a reasonable man, that such use would be without the proprietor's consent and would infringe the patent (section Process invention to dispose of or offer to dispose of, to use or import or to keep (whether for disposal or otherwise) any product obtained directly by means of a process (section 60(1) and All inventions to supply or offer to supply in the United Kingdom a person (other than a licensee or other person entitled to work the invention) with any other means, relating to an essential element of the invention, for putting the invention to effect (section 60(2)). [...]
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