Schütz v Werit: when repairing a patented product is permitted

On 13 March 2013, the UK Supreme Court handed down its ruling on the question of whether replacing part of a patented product infringes the patent in question. In reaching its decision, the Supreme Court has shifted the balance in favour of those who repair and re-condition products.

Where the invention protected by a patent is a product, the act of making that product without the consent of the patentee infringes the patent.

In this case, the product protected by the patent was a container for transporting liquids in bulk, which consisted of a pallet and a plastic bottle within a lattice metal cage. Whilst the patent claim was to the container as whole, the aspect of the container which was considered to be inventive was the particular construction of the lattice bars of the metal cage.

The question at issue was whether the replacement of the old bottles in used containers with new bottles by a third party constituted the “making” of the patented container. The Supreme Court ruled that it did not…

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