Unjustified threats of patent infringement: a global perspective
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It is common for patent owners sending cease and desist letters to alleged infringers to threaten patent infringement proceedings in an attempt to get the alleged infringer to cease their conduct.
However, such threats, if not justified, do present a risk to patentees in certain jurisdictions where there are “unjustified threats” provisions.
In this regard, such provisions usually provide that, if an unjustified threat is made, then the aggrieved person can seek certain relief from a court, which may include a declaration that the threat was unjustified, an injunction preventing that conduct, and compensation for losses incurred as a result of the threat, for example lost sales.
The critical issue in applying these provisions is the assessment of whether a threat of infringement proceedings is unjustified. In most jurisdictions this question turns on the reasonableness of the communication, rather than the sender’s subjective intention. The court may also consider the status of the patent and the nature of the alleged infringing activities.
In this article, we look at the different approaches in Australia, Belgium, Finland, Germany, Hungary, Italy, Poland, Singapore and the United Kingdom towards unjustified threats.
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