Patents Act 1977

• (b) “injunction” means “interdict”.

• (3) It is a defence for the person who made the threat to show that the act in respect of which proceedings were threatened constitutes (or if done would constitute) an infringement of the patent.

• (4) It is a defence for the person who made the threat to show—

• (a) that, despite having taken reasonable steps, the person has not identified anyone who has done an act mentioned in section 70A(2)(a) or (b) in relation to the product or the use of a process which is the subject of the threat, and

• (b) that the person notified the recipient, before or at the time of making the threat, of the steps taken.

70D

• (1) Proceedings in respect of an actionable threat may not be brought against a professional adviser (or any person vicariously liable for the actions of that professional adviser) if the conditions in subsection (3) are met.

• (2) In this section “professional adviser” means a person who, in relation to the making of the communication containing the threat—

• (a) is acting in a professional capacity in providing legal services or the services of a trade mark attorney or a patent attorney, and

• (b) is regulated in the provision of legal services, or the services of a trade mark attorney or a patent attorney, by one or more regulatory bodies (whether through membership of a regulatory body, the issue of a licence to practise or any other means).

• (3) The conditions are that—

• (a) in making the communication the professional adviser is acting on the instructions of another person, and

• (b) when the communication is made the professional adviser identifies the person on whose instructions the adviser is acting.

• (4) This section does not affect any liability of the person on whose instructions the professional adviser is acting.

• (5) It is for a person asserting that subsection (1) applies to prove (if required) that at the material time—

• (a) the person concerned was acting as a professional adviser, and

• (b) the conditions in subsection (3) were met.

70E

• (1) In sections 70 and 70B references to a patent include references to an application for a patent that has been published under section 16.

• (2) Where the threat of infringement proceedings is made after an application has been published (but before grant) the reference in section 70C(3) to “the patent” is to be treated as a reference to the patent as granted in pursuance of that application.

70F

In section 70(1)(b) the reference to proceedings for infringement of a patent includes a reference to proceedings for an order under section 61(1)(b) (order to deliver up or destroy patented products etc.) and proceedings in the Unified Patent Court for an order for delivery up made in accordance with articles 32(1)(c) and 62(3) of the Agreement on a Unified Patent Court.

Declaration or declarator as to non-infringement