Saturday 9 March 2019 10:00am to 11:00am
Faculty of Law, LG17
About
CIPIL Annual Spring Conference 2019
Mens Rea in IP: Knowledge and Intent and Infringement of Intellectual Property Rights
Saturday, 9 March 2019
Mens Rea in IP: Knowledge and Intent and Infringement of Intellectual Property Rights
Saturday, 9 March 2019
Chair: Mr Justice Richard Arnold
Intellectual property law had, for much of the 20th century, been thought of as a body of strict liability torts: a defendant infringes, irrespective of whether they knew about the claimant’s intellectual property right or intended to infringe it. As long as the act is not involuntary, there is infringement. Knowledge and intention might be relevant in evidentiary terms, or as a component of a defence, with respect to remedies, of to establish accessory liability, but rarely, if ever, in relation to substantive infringement by the primary actor. Yet, in recent years, questions of knowledge and intention have taken an increasingly prominent place in matters of IP infringement, particularly as a response to new technologies and environments. For example, questions have been asked as to whether:- a farmer should be regarded as infringing patent rights over genetically-modified plants, where seed spread on to the farmers land which they then bred (perhaps even without being aware of its presence);
- a manufacturer of a generic drug is liable for infringement where it sells the drug knowing it will be prescribed for a therapeutic use covered by a “Swiss-form claim” (https://www.supremecourt.uk/cases/docs/uksc-2016-0197-judgment.pdf);
- a search engine that automatically creates hyperlinks to infringing material communicates that material to a new public when the search engine provider cannot be said to ‘know’ the link is to such material;
- a maker of wine infringes another’s trade mark where users hide part of the mark applied to the goods by the alleged infringer so as to give the impression they are drinking the claimant’s wine?