Claiming an item is patented when it is not
Discussion
If it is claimed that an item is patent protected: i.e. it is marked on the item that it is patent protected and a patent number is cited
but the item clearly can not be protected by that patent (none of the claims are met and the real life item looks nothing like the item in the patent documentation)
how is that dealt with?
I suppose there could be a mistake in the patent number marked on the item, but let's say that the manufacturer is deliberately stating the item is patent protected when it is not.
What happens? What is the appropriate part of the legislation to use to address this?
but the item clearly can not be protected by that patent (none of the claims are met and the real life item looks nothing like the item in the patent documentation)
how is that dealt with?
I suppose there could be a mistake in the patent number marked on the item, but let's say that the manufacturer is deliberately stating the item is patent protected when it is not.
What happens? What is the appropriate part of the legislation to use to address this?
CubanPete said:
What is it?
It may be that a manufacturing process or use is patented.
Neither of those thingsIt may be that a manufacturing process or use is patented.
For the purpose of my question, take it as blatantly as you can. Let there be no doubt that the patent is not applicable and the claim is wholly false.
Which is the appropriate section of the patent act that would apply?
If the patent is clearly not applicable then no section of the act would apply. However, depending on the size of the organisation you are taking on, be bloody sure you are right.
We used to have a series of worldwide patents across our products, and protecting them in court was expensive and ultimately futile, though we used to roar occasionally we only once followed up.
We used to have a series of worldwide patents across our products, and protecting them in court was expensive and ultimately futile, though we used to roar occasionally we only once followed up.
I've been looking at this quite a bit recently. Last prosecution under s.110 was in 1980 and the maximum fine is only £1000, so actually going through with a private prosecution (I doubt Trading Standards will be particularly interested) will not be worth it.
I would therefore also look at a complaint to the ASA for any advertising referencing "patented" products, and a complaint to the Competition and Markets Authority under the wonderfully concisely-titled Business Protection from Misleading Marketing Regulations 2008. If they have a trade body with a code of conduct a complaint to them would be worth looking at too.
I would therefore also look at a complaint to the ASA for any advertising referencing "patented" products, and a complaint to the Competition and Markets Authority under the wonderfully concisely-titled Business Protection from Misleading Marketing Regulations 2008. If they have a trade body with a code of conduct a complaint to them would be worth looking at too.
It would be interesting to see the patent and the product in question. It may not be the case here, but to the untrained eye patent "claims" can bear little resemblance to the product they are supposed to protect.
False patent marking claims used to be a hot potato in the USA.
It used to be that any person could sue in the US for false US patent marking, and the penalty was crazily generous: up to $500 per item falsely marked. That could and often did work out a hell of a lot $$
The law was changed more recently so only the United States Gov can pursue the “up to $500 per item” fine. Anyone else commercially harmed by the false marking can only sue for damages associated with their commercial losses.
False patent marking claims used to be a hot potato in the USA.
It used to be that any person could sue in the US for false US patent marking, and the penalty was crazily generous: up to $500 per item falsely marked. That could and often did work out a hell of a lot $$
The law was changed more recently so only the United States Gov can pursue the “up to $500 per item” fine. Anyone else commercially harmed by the false marking can only sue for damages associated with their commercial losses.
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