Legal Protection of Digital Property
Lecture 10
PhD(Computer Science) LLM(Intellectual Property) Department of Computer Science
Copyright By PowCoder代写 加微信 powcoder
Patent Infringement: s.73
• forproductinvention,patentinfringedby
– making, putting on the market, using or importing the product; or
– stocking the product, whether for putting it on the market (in HK or elsewhere) or otherwise
• forprocessinvention,patentinfringedby – using the process; or
– offering the process for use in HK when the offeror knows, or it is obvious to a reasonable person, that the use of the process is prohibited; or
– putting on market, using, importing or stocking any product obtained directly by means of the process
NB. Standard patentee may sue for past infringing acts occurring after the standard patent application was published in HK, but the right to sue only arises after the standard patent has been granted: PO, ss.88(1), (3).
NB. Proving infringement is not straightforward, as the defendant may use a variant of the patentee’s algorithm making it look like it is outside the patentee’s claim.
Basic Question on Infringement
• is defendant’s product or process same as that of plaintiff (patentee)? ie. does defendant’s product or process fall within plaintiff’s claims?
NB. Involves construction of plaintiff’s claims.
NB. Court will compare the sets of essential elements (also called “essential integers”) of the subject matters in question. If defendant’s subject matter is same as patentee’s invention AND has included the same set of essential elements, then patent infringement.
Q: What if defendant uses variants of an essential element? Would the variants still fall within patentee’s claims?
• basictest:CatnicvHill&Smith(No.1) [1982] RPC 183 (HL)
– “purposive” construction of specification ie. what the skilled person understands the patentee to mean in the claim
– would a skilled person understand that strict compliance with the claim was intended by the patentee (ie. the variant would fall outside the claim even though it could have no material effect upon the way the invention worked)?
• more complete test on whether a variant falls within claims: Improver v Products [1990] FSR 181 (*RR)
(1) Does the variant have a material effect upon the way the invention works?
– If yes, variant is outside the claims; else (2)
(2) Would this (ie. that the variant has no material effect) have been obvious to the skilled person at the date of publication of the patent?
– If no, variant is outside the claims; else (3)
(3) Would the skilled person have understood from the claims that the patentee intended that strict compliance was an essential requirement of the invention?
– If yes, variant is outside the claims.
– If no, is variant within the range of variation as understood from the claims?
• followed in Improver v [1990] 2 HKC 28.
E1: X has obtained a standard patent for a solar energy car. The specification describes X’s invention as “a car driven by solar energy collected by a foil installed at the top right of the car and inclined at 45 ̊”. Y manufactures a similar car. The foil in Y’s car is installed at the top left of the car and inclined at 30 ̊. Any infringements?
E2: As in E1. The foil in Y’s car is controlled by a computer program which automatically adjusts the inclination of the foil according to the direction of sunlight.
Exceptions: s.75
• actsdoneprivatelyfornon-commercial purposes
– does not apply if dual purposes and one is commercial
• actsdoneforexperimentalpurposes
– can be for a commercial end
– but must be for discovering something unknown and not merely verifying that the invention works as claimed
Recommended Reading
• ImprovervRemingtonConsumer Products [1990] FSR 181
程序代写 CS代考 加微信: powcoder QQ: 1823890830 Email: powcoder@163.com