What Constitutes Contributory Infringement of a Patent in the United Kingdom?

In a recent case, the Court of Appeal has considered what constitutes contributory infringement. It has concluded that where the supplier knows that his product can, and probably will be modifed, to infringe, the supplier commits an offence.

Grimme, the patentee of European patent (UK) No. 730399, sued Derek Scott for infringement. The patent claim referred to potato separating machines having elastomeric rollers. The machines of Mr. Scott could be supplied with steel rollers . In Grimme v Scott [2010] EWCA Civ 1110, the Court of Appeal agreed with the court of first instance that the Scott machine did not directly infringe the patent under Section 60(1) of the Patents Act 1977.

"But the machines were designed so that the rollers are interchangeable. Thus those supplied with steel clod rollers can be changed by the ultimate user (or indeed a middleman) over to rubber rollers. Moreover they were marketed on that basis."

The Court of Appeal held that the supply by Mr. Scott of steel-rollered Evolution machines was a contributory infringement contrary to Section 60(2) of the Patents Act 1977.

Section 60(2), in part, states:

a person... also infringes a patent for an invention if, while the patent is in force and without the consent of the...