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patents: Court of Appeal reiterates Grimme verdict for contributory infringers

3 December 2010

Last month, in Grimme v Scott, the Court of Appeal considered the test for ‘contributory infringement’ of a patent.

Their interpretation was that someone can infringe simply by supplying “means essential” for using a patented invention if, when supplying, they know (or it is obvious to a reasonable person in the circumstances), that ultimate users will intend to put the invention into effect.

The decision was underlined this week in KCI Licensing v Smith & Nephew. The original judge had found that on the facts it would have been obvious that end users of Smith & Nephew’s wound drainage device might combine it with a clamp, infringing KCI’s patent. The Court of Appeal therefore held that by supplying the device, Smith & Nephew had themselves infringed.

This interpretation of the statute is likely to catch many more ‘indirect’ infringers – companies should be particularly careful when advertising products that they don’t suggest potentially infringing modifications.

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