Defences to alleged infringement
As already stated, if the defendant’s product does not embody all the essential integers of a claim, then it does not infringe that claim. Therefore, one of the arguments that can be raised is precisely what the essential integers are. This is not something to be dictated by the plaintiff, but is determined according to the complete specification — interpreted from the wording the plaintiff chose to use in the claims of the specification. If the plaintiff and defendant can agree on the essential integers, this will not be an issue — as is often the case. If the essential integers of the defendant’s product are disputed, the Commissioner of Patents will decide and the case will be tried on that basis.
It is also open to contest whether the defendant’s product embodies all the essential integers. This is often the battleground in infringement cases.
Moreover, as with designs, it is possible to raise as a defence any of the grounds which could be relied upon in an application to have the patent cancelled (revoked). In other words, although applying for revocation is an option, it is not necessary to do so to defend the infringement claim. Thus, if the Commissioner of Patents determines that the patent is invalid, it is a successful defence to an infringement claim even though the patent is not revoked. We will examine revocation proceedings shortly.
Read section 65(4) of the Patents Act.
When you conduct clinical or field trials, it is not an infringement of a patent if you make, sell or otherwise utilise the patented invention for non-commercial purposes and solely to obtain or develop information required under a law regulating the manufacture, sale or otherwise of any product.
Read section 69A of the Patents Act.