Section 60

Meaning of infringement

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60.-(1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say -

  • (a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;
  • (b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent;
  • (c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.


(2) Subject to the following provisions of this section, a person (other than the proprietor of the patent) also infringes a patent for an invention if, while the patent is in force and without the consent of the proprietor, he supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of the invention, for putting the invention into effect when he knows, or it is obvious to a reasonable person in the circumstances, that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom.

(3) Subsection (2) above shall not apply to the supply or offer of a staple commercial product unless the supply or the offer is made for the purpose of inducing the person supplied or, as the case may be, the person to whom the offer is made to do an act which constitutes an infringement of the patent by virtue of subsection (1) above.

(4) [repealed]

(5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if -

  • (a) it is done privately and for purposes which are not commercial;
  • (b) it is done for experimental purposes relating to the subject-matter of the invention;
  • (c) it consists of the extemporaneous preparation in a pharmacy of a medicine for an individual in accordance with a prescription given by a registered medical or dental practitioner or consists of dealing with a medicine so prepared;
  • (d) it consists of the use, exclusively for the needs of a relevant ship, of a product or process in the body of such a ship or in its machinery, tackle, apparatus or other accessories, in a case where the ship has temporarily or accidentally entered the internal or territorial waters of the United Kingdom;
  • (e) it consists of the use of a product or process in the body or operation of a relevant aircraft, hovercraft or vehicle which has temporarily or accidentally entered or is crossing the United Kingdom (including the air space above it and its territorial waters) or the use of accessories for such a relevant aircraft, hovercraft or vehicle;
  • (f) it consists of the use of an exempted aircraft which has lawfully entered or is lawfully crossing the United Kingdom as aforesaid or of the importation into the United Kingdom, or the use or storage there, of any part or accessory for such an aircraft.
  • (g) it consists of the use by a farmer of the product of his harvest for propagation or multiplication by him on his own holding, where there has been a sale of plant propagating material to the farmer by the proprietor of the patent or with his consent for agricultural use;
  • (h) it consists of the use of an animal or animal reproductive material by a farmer for an agricultural purpose following a sale to the farmer, by the proprietor of the patent or with his consent, of breeding stock or other animal reproductive material which constitutes or contains the patented invention.
  • (i) it consists of -
    • (i) an act done in conducting a study, test or trial which is necessary for and is conducted with a view to the application of paragraphs 1 to 5 of article 13 of Directive 2001/82/EC or paragraphs 1 to 4 of article 10 of Directive 2001/83/EC, or
    • (ii) any other act which is required for the purpose of the application of those paragraphs.1 SI 2005 No. 2759 [refers to 'Bolar'-type exemptions relating to medical trials]


(6) For the purposes of subsection (2) above a person who does an act in relation to an invention which is prevented only by virtue of paragraph (a), (b) or (c) of subsection (5) above from constituting an infringement of a patent for the invention shall not be treated as a person entitled to work the invention, but -

  • (a) the reference in that subsection to a person entitled to work an invention includes a reference to a person so entitled by virtue of section 55 above, and
  • (b) a person who by virtue of section 20B(4) or (5) above or section 28A(4) or (5) above or section 64 below or section 117A(4) or (5) below is entitled to do an act in relation to the invention without it constituting such an infringement shall, so far as concerns that act, be treated as a person entitled to work the invention.


(6A) Schedule A1 contains -

  • (a) provisions restricting the circumstances in which subsection (5)(g) applies; and
  • (b) provisions which apply where an act would constitute an infringement of a patent but for subsection (5)(g).


(6B) For the purposes of subsection (5)(h), use for an agricultural purpose -

  • (a) includes making an animal or animal reproductive material available for the purposes of pursuing the farmer's agricultural activity; but
  • (b) does not include sale within the framework, or for the purposes, of a commercial reproduction activity.


(6C) In paragraphs (g) and (h) of subsection (5) "sale" includes any other form of commercialisation.

(7) In this section -

  • "relevant ship" and "relevant aircraft, hovercraft or vehicle" mean respectively a ship and an aircraft, hovercraft or vehicle registered in, or belonging to, any country, other than the United Kingdom, which is a party to the Convention for the Protection of Industrial Property signed at Paris on 20th March 1883 or which is a member of the World Trade Organisation; and
  • "exempted aircraft" means an aircraft to which section 89 of the Civil Aviation Act 1982 section 53 of the Civil Aviation Act 1949 (aircraft exempted from seizure in respect of patent claims) applies.
  • "Directive 2001/82/EC" means Directive 2001/82/EC of the European Parliament and of the Council on the Community code relating to veterinary medicinal products as amended by Directive 2004/28/EC2 of the European Parliament and of the Council;3
  • "Directive 2001/83/EC" means Directive 2001/83/EC of the European Parliament and of the Council on the Community code relating to medicinal products for human use, as amended by Directive 2002/98/EC of the European Parliament and of the Council, by Commission Directive 2003/63/EC, and by Directives 2004/24/EC and 2004/27/EC of the European Parliament and of the Council4.

Notes:
Manual of Patent Practice

Consolidated texts of EC Directives relating to Bolar exemptions (from EU-Lex website):
2001/82/EC
2001/83/EC (does not include modifications made by 2004/24/EC or 2004/27/EC)

s60(2) contributory infringement: see Menashe v William Hill [2002] EWCA Civ 1702 - means for putting the invention into effect in the UK applies even where elements of the invention (computer servers) are overseas. At para 24:

  • "I believe that Mr Arnold is correct and that "the invention" referred to in section 60(2) is that claimed in the patent (see section 125). In this case, as Mr Arnold pointed out, the claimed invention is an apparatus. If so, I believe he is right that the words "to put, the invention into effect" must require the means to be intended to put the apparatus claimed into effect: thereby requiring the claimed apparatus to become effective. Thus the means, the CDs, must be suitable for putting and be intended to put the claimed apparatus in a state of effectiveness, essentially to put into an infringing state in the United Kingdom".

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