The parties disputed whether the defendant had a right to repair his equipment manufactured by the plaintiff under its patent.
Held: There was an implied licence to repair. However, the real issue was whether the defendants had made a ‘new merchantable article’: had the defendants made the patented product.
Buckley LJ said ‘It has long been recognised that a purchaser of a patented article may carry out repairs to it without being held liable for infringement. On the other hand he cannot manufacture a new article which infringes the patent and claim that he has not infringed merely because in the manufacture he has used parts derived from a patented article sold by the patentee: Dunlop Pneumatic Tyre Co. Ltd. v. Neal (1899) 16 R.P.C. 247; Dunlop Pneumatic Tyre Co. Ltd. v. Holborn Tyre Co. Ltd. (1901) 18 R.P.C. 222. ‘ that the question was one of fact and degree and that the ‘cardinal question’ was whether ‘what has been done can fairly be termed a repair, having regard to the nature of the patented article’. He saw no difference between this question and the question of whether, having regard to the nature of the patented article, the defendant could be said to have made it.
Buckley LJ
[1977] RPC 537
England and Wales
Cited by:
Cited – Schutz (UK) Ltd v Werit (UK) Ltd SC 13-Mar-2013
The parties disputed whether there had been an infringement of the claimant’s patent in respect for ‘intermediate bulk containers’ designed for the safe transport of liquids in bulk. They were a cage holding a plastic bottle. The defendant had a . .
These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.472103