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Before you sue for patent infringement, or even threaten to …

Court (Small)The above title is perhaps a trap. The word “threat”, leaps to the eye; but be reassured that the author is assuming that any approach to the other side would be couched so as not to be actionable under Section 70 of the UK Patents Act. The point being made is that, even before any such approach is made (let alone before an action is begun), the client needs to reflect.

Unless the client is a patent assertion entity (=PAE=patent troll=non-practising entity=NPE) or, to a degree, a pharmaceutical company or the like, his proposed action or threat of action cannot be considered in isolation from his business more generally. (A PAE has no business to worry about other than threatening or litigating; while in pharmaceuticals and the like, patents and therefore patent litigation are a key part of the business model.) With these exceptions, an immediate concern should be the risk of a countersuit, ie an allegation by the other party that the client infringing one of his patents. In many technical areas, mutual patent awareness is poor between competitors; as a result, the client about to make the threat may be unwittingly infringing a patent of the other party, and the other party may be just as unaware of the latter infringement until, provoked by the threat, he looks for it. (more…)