Research Paper: Third Party Negligence and Patent Infringement Claims by Oluwakorede Adeboye

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The learned and famous Lord Atkins once explained that there are unexplored foundational principles of law because lawyers and litigants have failed to understand that all branches of laws are intertwined, this can either save or mar a case depending on the wielder of the weapon. This research tends to answer the question “what is the possible application and effect of third party negligence in patent infringement claims?”

This research question originated from the review and analysis of J. E. M Ag Supply Inc v. Pioneer Hi-Bred International, Inc,¹ Monsanto Canada Inc. v. Schmeiser² and Monsato’s case (unreported). The research methodology utilized is a qualitative case study and analysis approach by addressing practical issues based on professional experience as a legal practitioner.

Although Intellectual Property law is defined to be sui generis, patent has been classified as a strict liability tort, in the sense that the defendant (infringer) is deemed liable regardless of his innocence or lack of knowledge as to the patent ownership of the invention.³ In a strict liability tort such as patent infringement, the devastating claim for damages against an alleged infringer due to the act of a third party would necessarily be granted regardless of the fact that it was the negligence of another party that necessitated the commencement of infringement proceedings, because the legislation and legal practitioners have failed to apply or envisage the possibility of utilizing the action or omission of the third party as a necessary defence. Patent infringement allows no accommodation to be made for unintentional infringement, regardless of the efforts of the alleged infringer to avoid such infringement, once a valid patent has been infringed, the patentee is entitled to full compensation for any injury resulting from the infringement.4 How then would negligence become elementary to patent infringement claims is the question that might arise, and where it is answered I the affirmative the next step would be to understand negligence as a whole.

This paper was published as part of NLIPW Patents Watch Vol. 3 No. 16.

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  1. [2010] 534 U.S. 124
  2. [2004] 1 SCR 902
  3. Roger D. Blair and Thomas F. Cotter, ‘Strict Liability and Its Alternatives in Patent Law’ (2002) 17(2) Berkeley Tech. L.J. 799, 800. 4
  4. Ibid 821.

About the Author

Oluwakorede Emmanuel AdeboyeOluwakorede Emmanuel Adeboye is a graduate of Benson Idahosa University, Benin, where he obtained his Bachelors of Law in 2013. He attended the Nigerian Law School (Kano) where he graduated and was called to the Nigeria Bar in 2014.

He is presently undergoing his Masters of Intellectual Property Law at Queensland University of Technology, where he has been privileged to be enlightened and impacted by some of the worlds renowned Patent and Trademark Experts and continues to research and produce articles related to intellectual property law.

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