Patents Act 1994 · 2020 Revised Edition · Part 13 · Infringement of Patents
76. Infringement of rights conferred by publication of application
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Where an application for a patent for an invention is published, then, subject to this section, the applicant has, as from the publication and until the grant of the patent, the same right as the applicant would have had, if the patent had been granted on the date of the publication of the application, to bring proceedings in the court for damages in respect of any act which would have infringed the patent.
patent
“patent” means a patent under this Act and includes a patent in force by virtue of section 117(3);
References in sections 66 to 69 and 73 to 75 to a patent and the proprietor of a patent are to be respectively construed as including references to any such application and the applicant, and references to a patent being in force, being granted, being valid or existing are to be construed accordingly.
The applicant is entitled to bring proceedings by virtue of this section in respect of any act only —
after the patent has been granted; and
if the act would, if the patent had been granted on the date of the publication of the application, have infringed not only the patent, but also the claims (as interpreted by the description and any drawings referred to in the description or claims) in the form in which they were contained in the application immediately before the preparations for its publication were completed by the Registry.
Section 69(3) and (4) does not apply to an infringement of the rights conferred by this section but in considering the amount of any damages for such an infringement, the court is to consider whether or not it would have been reasonable to expect, from a consideration of the application as published under section 27, that a patent would be granted conferring on the proprietor of the patent protection from an act of the same description as that found to infringe those rights, and if the court finds that it would not have been reasonable, the court is to reduce the damages to such an amount as the court thinks just.