Intellectual property law – achieving a balance between the right to enforce and protecting innovation - Law Commission is the title of the Law Commission's report on remedies for groundless threats. The Commission says on its website:
In our report, we recommend that:
- the protection against groundless threats of infringement proceedings should be retained, for patents, trade marks, registered and unregistered design right but it should be reformed;
- a threats action may not be brought for all threats made to a primary actor; this is already part of patent law but should also apply for the other rights. Primary actors are those who have carried out primary acts, such as the importation of goods or the application of a mark to packaging. Primary acts can cause the greatest commercial damage to a rights holder;
- it should be possible to communicate with secondary actors, that is those who have not carried out primary acts. This will be where there is a legitimate commercial purpose behind the communication and where there are reasonable grounds for believing that the information provided is true. Guidance as to what may be said should be provided by the legislation;
- for patents, it should no longer be possible to avoid liability for making threats by showing that at the time the threat was made the threatener did not know, or had no reason to suspect, that the patent was invalid; and
- a lawyer, registered patent attorney or registered trade mark attorney should no longer be jointly liable for making threats where they have acted in their professional capacity and on instructions from their client.
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