Remedies for infringement
Proceedings for the infringement of a patent take place before the Commissioner of Patents. In all respects, these are virtually identical to High Court proceedings.
The remedies that the Commissioner can grant are:
- an interdict — this will only last for the remaining life of the patent;
- delivery up (handing over to the patentee) of any infringing article;
- an award of damages;
- or, instead of damages, a royalty such as would, reasonably, have been payable by a licensee in respect of the patent.
Read section 65 of the Patents Act.
However, a patentee will not be awarded damages if the defendant proves that he was not aware of the existence of the patent and had no reasonable means of becoming aware.
Marking a product with the words ‘patented’ or ‘patent pending’ only creates such awareness if the number is given as well.
If you are likely to be involved with proceedings for infringement of a patent, consult a patent attorney — sooner than rather later.