Contributory Infringement Of Intellectual Property Rights

Author:Mr Márcio Merkl
Profession:Abreu, Merkl E Advogados Associados
 
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Originally Published 26th October 2008

The delegates of the International Association for the

Protection of Intellectual Property AIPPI approved, on 10 Sep 2008,

during the 41st World IP Congress held in Boston, a Resolution

recommending that all jurisdictions adopt rules on contributory

infringement harmonizing the basic principles thereof.

The Working Committee Q204 resumed AIPPI's previous study

which, in 1997, on the ExCo/Vienna, within the scope of Q134A, had

already discussed some aspects of this subject in regard to

patents. It was concluded in the Q204 that the basic principles for

establishing contributory infringement should generally be the same

for all types of IPRs (Intellectual Property rights), while the

particular nature of each type of IPR justifies certain differences

in the detailed conditions for establishing contributory

infringement.

The final text of the Resolution delimits that the "basic

principles" for contributory infringement should include that:

the means supplied or offered by the contributory infringer

"relate to a substantial element of the subject matter of the

protected IPR"; and, "are for an infringing use";

and that at the time of offering or supply, "the suitability

and intended use were known to the supplier or obvious under the

circumstances."

The Resolution also approaches the parameters applicable for

injunction relief, highlighting the consideration that it should

not be a condition for an injunction against contributory

infringement that an act of infringement is actually committed, if

such actual infringement is likely to occur.

To sum up, in line with the Report produced by...

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