Patent infringement - should it be a criminal act?

Published: 7 October 2005
By: Ted Blake

Vicki Salmon, spokesperson for the Chartered Institute of Patent Agents, feels that European proposals to make wilful patent infringement a criminal act, like trade mark counterfeiting and copyright piracy, show a lack of understanding of the issue and thus would be a retrograde step.

It is the view of Vicki and her colleagues in the Institute that, in an age when Governments are trying to foster competition and technical development, making patent infringement a criminal activity is likely to inhibit these desirable objectives. She said:

'In order for a patent to be valid, the invention which is the subject of any patent application must not have been disclosed in any form at all, anywhere in the world at any time before the date the application was filed. There is not a patent office in the world that can search everything that has ever been published. So there obviously can never be an absolute guarantee that any patent is valid.

It is thus not unknown for organisations, which have information that in their view clearly invalidates a patent to proceed to manufacture products or carry out processes, which would be construed as infringements if the patents were valid. Should the issue reach the courts the alleged infringer will produce the information they have in order to invalidate the patent. If they fail to satisfy the courts they will pay damages.

This is an entirely different state of affairs from the wilful selling of goods or services under a well-known trade mark which clearly belongs to someone else and has thus been counterfeited in order to mislead the public into thinking they are getting the real thing. This is often coupled with other criminal activity (e.g. money laundering or tax avoidance). It is the same with copyright material. Copying someone else’s films or records and then selling them as the genuine article is really little more than theft.'

Background

A detailed paper setting out the comments made on behalf of the Chartered Institute of Patent Agents (CIPA) in relation to the proposed Directive on criminal measures, and measures to strengthen the criminal law framework within the EU are to be found on the Institute website at the following address: www.cipa.org.uk/pages/comments/article?89F78D49-B75E-4AD1-9D96-E7CCC3C19955