Case law: Customers testing or trialing patented products should beware infringing patent
Customers intending to test or trial patented products should ensure their activities do not amount to infringement of the patent or, if they do, that the testing amounts to experimental use for purposes related to the subject matter of the invention.
This update was published in Legal Alert - January 2017
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
Under patent law, it is a defence to an allegation of infringement of a patent if the infringing act was done for experimental purposes relating to the subject matter of the invention protected by the patent.
A company ordered around 1000 smart gas meters from a supplier, and installed 120 of them in customers’ properties to test their suitability. The meters were protected by a patent.
The supplier claimed the company’s acts amounted to infringement of the patents on the meters. The company argued that if what they had done was an infringement, they were not liable as the acts were for experimental purposes.
The trial was not intended to result in any improvement of the meters. However, the High Court agreed that the trial, intended to test operation of the meters in a live system, could be categorised as experimental.
But the Court went on to decide that the company’s use of the meters was not related to the subject matter of the invention. It was not ‘genuine research relating to the development of metering’, but merely testing of a ready-made system to see if it was suitable for the customers’ purposes (for example, whether it could be installed and used easily). Therefore, the company had failed to make out the defence of experimental use for purposes relating to the subject matter of the invention.
- Customers intending to test patented products should ensure that their activities do not amount to infringement of the patent or, if they do, that the testing amounts to experimental use for purposes related to the subject matter of the invention
Case ref: Meter-Tech LLC and Vanclare SE LLC v British Gas Trading Limited  EWHC 2278
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.