To know whether a patent is infringed, Article 69 of the European Patent Convention (EPC) is consulted. Protocol (Section 3.7.2) of Article 69 reads, “The scope of protection of the European patent shall be determined by the claims.
To determine whether there has been an infringement of a patent Article 69 of the European Patent Convention is invoked (EOV). Protocol (para. 3.7.2) of Article 69 reads: ‘The scope of protection of the European patent is determined by the conclusions. Nevertheless, the description and drawings serve to explain the conclusions'.
When is there patent infringement?
Patent infringement occurs when someone manufactures, uses, sells, or imports the protected invention within the protected territory without permission. Offering, possessing, or transiting the invention may also constitute infringement.
Several types can be distinguished, namely:
- Literal infringement: this occurs when someone uses the invention, i.e. all the features, from the independent claim(s) of a patent applies.
- There is equivalent infringement when means that do not read literally under the text but can be considered equivalent achieve the same result. In these situations, explanations may vary from country to country.
- There is indirect infringement in supplying an essential element of the invention if it is known or obvious in the circumstances that those means are suitable and intended for that application.
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