Patent Enforcement Solicitors London

A patent that is never enforced offers only theoretical protection. When a competitor copies your patented product or process, the value of your intellectual property depends entirely on your willingness and ability to act. Freeman Harris advises patent holders on every stage of enforcement, from the first letter before action through to injunctions, damages awards, and settlement.

Our patent team is led by David Sant, a Solicitor-Advocate (England & Wales), Solicitor (Ireland), and European Patent Attorney before the EPO, with over 30 years’ experience spanning patent drafting, prosecution, High Court litigation, EPO oppositions, arbitration, and licensing. David has rights of audience before all civil courts of England and Wales, meaning he can represent clients at every stage of proceedings, from interlocutory applications through to trial. Whether you need to move quickly to stop ongoing infringement or build a methodical case for maximum recovery, we advise on the strategy best suited to your position.

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When to Enforce Your Patent

Not every instance of apparent infringement requires immediate court action, and not every case is best served by a letter before action. The right response depends on the nature and scale of the infringement, the commercial relationship between the parties, and the strength of your patent.

We advise clients at the outset on the realistic prospects of enforcement, the likely costs and timeframes of available routes, and whether the defendant may have arguments on validity or non-infringement that need to be assessed before proceedings are issued. Acting without that assessment can lead to adverse costs orders, the loss of the infringer’s goodwill, or — in the worst case — a successful invalidity counterclaim.

What Constitutes Patent Infringement?

Under section 60 of the Patents Act 1977, a patent is infringed where a person, without the consent of the patent holder, does any of the following in relation to a patented product or process in the UK:

• Makes, disposes of, offers to dispose of, uses, or imports a product that falls within the claims of the patent
• Uses a patented process, or offers it for use in the UK when the person knows — or it would be obvious to a reasonable person — that such use without the consent of the proprietor would be an infringement
• Disposes of, offers to dispose of, uses or imports a product directly obtained by means of a patented process
  Infringement of European patents (UK) is assessed in the same way once the patent is granted and published in the UK.

The Enforcement Process

Step 1 — Pre-Action: Letter Before Action

In most cases, enforcement begins with a formal letter before action. This sets out the patent being infringed, the nature of the infringing act, and the remedies sought. The letter must comply with the Practice Direction on Pre-Action Conduct and — critically — must be carefully drafted to avoid a groundless threats action under section 70 of the Patents Act 1977.

We draft letters before action that are firm and legally precise while avoiding the risk of a reverse claim for unjustified threats. Where the infringer’s identity or the full extent of the infringement is unclear, we may advise seeking a Norwich Pharmacal or disclosure order before sending correspondence.

Step 2 — Interim Injunction (Where Urgency Demands)

Where the infringement is causing immediate and significant commercial harm — for example, where a competitor has just launched an infringing product — an application for an interim injunction may be appropriate. The court applies the American Cyanamid balance of convenience test, and the applicant must give a cross-undertaking in damages.

We move quickly when speed matters. An interim injunction obtained at the outset can stop an infringing product in its tracks before the defendant has had time to establish market presence.

Step 3 — Issuing Proceedings

Where a letter before action does not result in an acceptable resolution, proceedings are issued in the appropriate forum.

Step 4 — Trial and Remedies

If the matter proceeds to trial, the court will determine issues of infringement and — if validity is challenged — validity. Successful patentees can obtain a final injunction, an inquiry as to damages or an account of profits, delivery up or destruction of infringing articles, and a declaration of infringement.

Choosing the Right Court

Intellectual Property Enterprise Court (IPEC)

IPEC is the specialist IP court within the Business and Property Courts, designed for disputes of moderate complexity and value. Key features:

• Costs cap: Recoverable costs are capped at £60,000
• Damages cap: Damages are capped at £500,000
• Streamlined procedure: Stricter case management, shorter timetables, and a cap on the number of expert witnesses
• Listing: Cases are typically listed within 12 months of issue

IPEC is well suited to straightforward infringement cases where the infringing product is clearly identified, the patent claims are not highly complex, and the commercial value of the dispute falls within the caps. For many SMEs and individual patent holders, IPEC represents the most accessible and cost-effective route to enforcement.

Patents Court (High Court)

The Patents Court handles more complex or high-value patent disputes without financial caps. It is appropriate where:

• The value at stake exceeds IPEC limits
• The technical complexity is substantial
• Multiple patents or a portfolio of rights is in dispute
• Emergency or without-notice relief is needed urgently

The Patents Court also hears appeals from the UKIPO and IPEC.

Remedies Available on a Successful Claim

Where infringement is established, the court can award the following remedies:

Final injunction — a court order prohibiting any further infringement. Breach of an injunction is contempt of court. This is typically the primary commercial objective in enforcement proceedings.

Damages — compensation for the losses suffered as a result of the infringement, typically calculated by reference to lost sales or lost royalties.

Account of profits — instead of damages, the patent holder may elect to claim an account of the infringer’s profits derived from the infringing acts. This can result in a higher award where the infringer has been highly profitable.

Delivery up or destruction — the court may order that infringing products be handed over to the patentee or destroyed under supervision.

Declaration of infringement — a formal declaration that the defendant’s acts infringed the patent, which can be commercially valuable and useful in parallel proceedings in other jurisdictions.

Costs — the losing party typically pays the winning party’s costs, subject to the caps in IPEC proceedings.

Defending Against a Patent Infringement Claim

If you have received a letter of claim or are facing patent proceedings, early advice is essential. The key defences available include:

• Non-infringement — the product or process does not fall within the scope of the patent claims on a proper construction
• Invalidity — the patent should not have been granted and should be revoked
• Licence or consent — there is an express or implied licence, or the patentee has consented to the acts complained of
• Exhaustion of rights — the product was first put on the market in the UK or EEA by or with the consent of the patent holder
• Prior use — you were using the invention in the UK before the priority date of the patent

We advise defendants in patent infringement proceedings on all available defences, including invalidity counterclaims which, if successful, extinguish the claimant’s case entirely. See our Patent Revocation page for more detail.

The Groundless Threats Provisions

The Patents Act 1977 (as amended by the Intellectual Property (Unjustified Threats) Act 2017) gives a person aggrieved by a groundless threat of patent infringement proceedings the right to bring a claim for: a declaration that the threat is unjustifiable; an injunction against continuance of the threat; and damages for any loss suffered.

This means that patent holders and their solicitors must be careful in how they communicate with third parties about alleged infringement. We draft all correspondence with the threat provisions in mind, ensuring that enforcement communications are legally sound and do not expose our clients to reverse claims.

Why Freeman Harris?

Freeman Harris is a London intellectual property firm with a dedicated patent team. David Sant is triple-qualified — as a Solicitor-Advocate (England & Wales), Solicitor (Ireland), and European Patent Attorney — with rights of audience before all civil courts of England and Wales. He has over 30 years’ experience that spans the full patent lifecycle, from prosecution and EPO oppositions through to High Court litigation and arbitration. His technical expertise covers mobile telephony, SEPs, software patents, communications, and the broader physical sciences, enabling him to advise on complex, technically demanding cases as well as straightforward enforcement matters.

We act for patent holders and defendants across technology, telecoms, engineering, and the physical sciences.

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