In our BL&Gs we often talk about how you go about obtaining IP rights. But what if you or your competitor already have these rights? What is the right course of action? What are you and are you not allowed to do in that case? In the coming series of BL&Gs we are going to be focusing on the topic of 'infringements'.
If you have a business and place products on the market or manufacture them yourself, you could end up facing an infringement.
What is an infringement?
If you make an infringement, you violate someone else's Intellectual Property rights. Although you are not allowed to infringe these rights, it is up to the patent holder to undertake action to enforce his or her rights. There is no such thing as a patent police force to track down infringements.
You can make an infringement by
- making
- using
- introducing
- or leasing out a product or process that is subject to Intellectual Property rights
- by supplying it or trading in it
- offering it on a commercial basis
- importing it
- and/or keeping it in stock.
However, this is only applicable in the countries in which the patent is valid.
If someone has a patent on an ingenious dentist's chair in Belgium, France and Germany, for example, there is nothing to stop you from selling that chair in the Netherlands. In Germany, on the other hand, you would only be allowed to do so with the patent holder's permission, in the shape of a licence, for instance.
Can anyone make an infringement?
No. As a consumer you cannot make an infringement. Universities do not infringe any Intellectual Property rights either when they conduct scientific research, or if their activities are aimed at improving the prior art.
You can only make an infringement if your intentions are of a commercial nature. Businesses in particular need to stay alert when it comes to what they bring onto the market and what they manufacture.
What are the consequences of an infringement?
The holder of the patent can force you to take the product off the market immediately. On top of that he can demand damages. It is up to the court to decide how much these are going to be. You will also be responsible for paying the costs of the other party's legal fees.
It does not necessarily all have to end up in court. Sometimes the patent holder will be happy for you just to take the patented product off the market with immediate effect.
My advice is: avoid expensive surprises and always examine the IP rights within your market first. In next week's BL&G Jeroen explains how you go about this.
