Contributed By Linklaters
See 2.2 Third-party Remedies to Remove Effects of Intellectual Property Right for the various defences that an (alleged) infringer may invoke.
The main defences available are related to invoking the invalidity of the patent and claiming non-infringement. The alleged infringer may also invoke expiry of the patent, lack of entitlement to the relevant patent rights, the various exceptions discussed at 2.2 Third-party Remedies (private and non-commercial use, Bolar, exhaustion, prior personal use or possession), statute of limitations or abuse of rights. Alternatively, the alleged infringer may also invoke the so-called 'Gillette' defence (which may be of particular use in cease-and-desist proceedings), whereby the alleged infringer asserts that he or she merely applied the prior art existing at the application or priority date of the invoked patent, implying that the invention covered by the patent is not new or inventive (without, however, invoking the patent’s invalidity) or that the alleged act of infringement falls outside the scope of the patent.