Section 62

Restrictions on recovery of damages for infringement

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62.-(1) In proceedings for infringement of a patent damages shall not be awarded, and no order shall be made for an account of profits, against a defendant or defender who proves that at the date of the infringement he was not aware, and had no reasonable grounds for supposing, that the patent existed; and a person shall not be taken to have been so aware or to have had reasonable grounds for so supposing by reason only of the application to a product of the word "patent" or "patented", or any word or words expressing or implying that a patent has been obtained for the product, unless the number of the patent or a relevant internet link1 accompanied the word or words in question.

(1A)2 The reference in subsection (1) to a relevant internet link is a reference to an address of a posting on the internet -

  • (a) which is accessible to the public free of charge, and
  • (b) which clearly associates the product with the number of the patent.

(2) In proceedings for infringement of a patent the court or the comptroller may, if it or he thinks fit, refuse to award any damages or make any such order in respect of an infringement committed during the further period specified in section 25(4) above, but before the payment of the renewal fee and any additional fee prescribed for the purposes of that subsection.

(3) Where an amendment of the specification of a patent has been allowed under any of the provisions of this Act, the court or the comptroller shall, when awarding damages or making an order for an account of profits in proceedings for an infringement of the patent committed before the decision to allow the amendment, take into account the following -

  • (a) whether at the date of infringement the defendant or defender knew, or had reasonable grounds to know, that he was infringing the patent;
  • (b) whether the specification of the patent as published was framed in good faith and with reasonable skill and knowledge;
  • (c) whether the proceedings are brought in good faith.3

Notes:
Manual of Patent Practice

The onus is on the infringer to prove innocence, i.e. that he was unaware and could not reasonably have been aware, of the existence of the patent. This may result in different standards of proof for different infringers, e.g. for a large company with a patent department not to be aware of the existence of a patent may be harder to prove than for a small enterprise or sole trader.


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