What To Do If You Suspect Infringement

Published date12 November 2021
Subject MatterIntellectual Property, Litigation, Mediation & Arbitration, Patent, Arbitration & Dispute Resolution
Law FirmDehns
AuthorDehns &nbsp

As a holder of intellectual property (IP) rights you have the tools you need to protect the results of your creativity and innovation. Patent owners benefit from exclusive rights to the invention claimed. The monopoly provided by your patent rights can really give you the edge in your market. But what should you do when an unauthorised party seems to be exploiting your protected technology and eroding your commercial advantage?

Don't take rash action

You need to be careful how you handle the situation, even if you are under pressure to underline your market position. Don't be tempted to approach or write to the suspected infringer, or particularly their customers without first seeking professional advice. Threats made in the wrong way or against the wrong person could give anyone that suffers damage as a result a claim against you. Any ill-worded statements made at this stage could also be used against you later in court.

A professional adviser such as a qualified patent attorney can review the situation for you and advise whether there are genuine grounds to suspect infringement and, if so, how to deal with it.

Collecting evidence of infringement

If you have a patent in force in the UK then directly infringing commercial activities include importing, selling, using or offering to sell a patented product or carrying out a patented process, in the UK. You should keep a record of all suspected infringing acts, e.g. what is being manufactured or offered for sale, when it is supplied, and by whom. Try to obtain samples of any products you suspect of infringing.

First steps to resolving the situation

Your adviser will advise how best to take action, and against whom. Typically this involves writing to the suspected infringer to draw attention to your patent. This could be enough for them to stop their activities. However, if they keep operating regardless then you may have to exercise your patent rights against them. Sometimes more urgent action is necessary to prevent irreparable damage or destruction of evidence.

A potential licensing opportunity?

If the infringer is not your direct competitor or there is room for both of you in the market, then you could consider offering them a licence to operate within the scope of your patent. This could earn you royalty fees and save you both the time and expense of legal proceedings.

Seizing infringing goods before they harm your business

If you become aware that products infringing patents or any other IP rights are...

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