Government Powers To Use Third Party IP Rights

Published date06 August 2020
Subject MatterIntellectual Property, Patent
Law FirmHaseltine Lake Kempner LLP
AuthorMs Kathryn Leake

Crown use

Under sections 55 to 58 of the Patents Act 1977 ("PA 1977"), the government has powers to use or permit others to use a third party's patent without first seeking permission from the patentee, provided such acts are authorised in writing by a government department. These powers are not all-encompassing - a patentee may sue for infringement if the use of their patent falls outside these provisions - but in certain circumstances they allow the government to use a third party's patent quickly, without first obtaining consent.

IPCom GmbH & Co KG v Vodafone Group Plc

The recent case of IPCom GmbH & Co KG v Vodafone Group Plc, [2020] EWHC 132 (Pat) addressed Crown use as a defence to patent infringement.

It was alleged that Vodafone had infringed IPCom's patented 3G technology by using it to provide access to Vodafone's network for emergency responders under the Mobile Telecommunications Privileged Access Scheme (MTPAS).

Vodafone relied on Crown use as a defence to infringement, and succeeded for the following reasons:

  • Vodafone was authorised in writing by a government department to provide priority access to its network in an emergency situation. The authorisation did not explicitly permit Vodafone to use technologies covered by third party patents or name IPCom's patent, but it was still held to be sufficient to invoke Crown use. The court held that there was no need for the authorisation specifically to mention any patent rights that may be infringed, because this would place a heavy burden on the relevant government department, particularly when an authorised act may infringe several patents at once.
  • Vodafone did not need to prove that it was necessary to practise IPCom's patent specifically to do the...

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