A patent can (and hopefully will) serve behind-the-scenes to deter third parties from using your technology. To maximise this deterrent effect, it is best to ‘mark’ your product and/or associated materials with your patent number(s). This can also assist you in being able to recover damages in the event that a third party infringes your patent.

Where a third party infringes, you are entitled to bring infringement proceedings against them in court. If you are successful, the court can order that the third party stops any infringing activity, delivers to you or destroys any infringing product in its possession, pays you compensation and (in some countries) makes a contribution towards your legal costs.

In practice, infringement proceedings are complex and costly to pursue and as a result most patent disputes are settled out of court.

The first step in stopping an infringer is typically to identify the infringer and obtain an infringing product or other evidence of the alleged infringing activity. You and your attorney can then check to make sure that the alleged infringement does fall within the scope of your patent.

Once this has been checked, the next action is typically to send a formal warning letter to the alleged infringer. In this letter, it is the normal practice to identify your rights, outline the infringing conduct, explain why the conduct is an infringement of your rights, and request that the infringer stop infringing, agree not to infringe again, and/or provide compensation for the infringement. Professional advice should be sought before sending any warning letter, as, depending upon how the letter is worded, it could give third parties the right to bring proceedings against you and/or may provoke them to challenge the validity of your rights.

Sometimes sending a warning letter brings about the result that you want, or a compromise is agreed. If not, infringement proceedings can be started.

Starting proceedings against an infringer is not a decision to be taken lightly. You have to decide whether it is worth the cost. You should weigh up issues such as:

• The value of the patent to your business;
• The costs that will likely be involved;
• The other, non-financial impacts that enforcement will have on the business;
• The extent to which the infringer can defend the action and/or pay any damages or costs.

Just because you have a patent and someone infringes it does not mean that you have to take action, although it makes sense to take action to protect your patent rights if they are valuable to your business.

Wilson Gunn can advise on all aspects of intellectual property protection. Please get in touch to speak to a member of our team about patent protection.