Under section 55 of The Patents Act 1977, any government department or person authorised in writing by a government department may, for the services of the Crown, perform certain acts in the UK without the consent of the proprietor of the patent. Such acts consist of: (i) making, using, importing/keeping the product or selling or offering to sell the product where doing so would be ancillary to making, using importing or keeping it; or (ii) selling or offering to sell the product for foreign defence purposes or for the production or supply of specified drugs and medicines.
Section 59 of The Patents Act 1977 provides for Crown use during a period of emergency and extends the powers provided under Section 55 to include the power to use the invention for any purpose necessary: (a)
- for the efficient prosecution of war;
- for the maintenance of supplies and services essential to the life of the community;
- for securing a sufficiency of supplies essential to the well-being of the community;
- for promoting the productivity of industry, commerce and agriculture;
- for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade;
- generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community; or
- for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any country or territory outside the UK, which is in grave distress as the result of war;
and any reference in this Act to the services of the Crown shall, as respects any period of emergency, include a reference to those purposes.
A “period of emergency” is defined as “any period beginning with such date as may be declared by Order in Council to be the commencement, and ending with such date as may be so declared to be the termination, of a period of emergency for the purposes of this section”.
The abovementioned provisions could lead to government authorisation of certain medical equipment or the manufacture of certain medicines and the Crown use defence could then act as a defence to potential patent infringement claims.