Left: interesting problems might arise where robot policemen themselves constitute infringements of third party patents
Since the debate is likely to continue for a while, PatLit thinks it might be worthwhile making a few points:
* The Crown Prosecution Service in England and Wales, and its Scottish and Northern Irish equivalents, have little knowledge and experience in any branch of intellectual property law. The same can be said for the courts that hear criminal cases. Such expertise would have to be acquired at a cost and would have to be renewed or refreshed at regular intervals, particularly if it were not regularly brought to bear;
* Countries that do make provision for the criminal prosecution of patent infringers appear to invoke the criminal only very rarely;
* If, as in the case of criminal trade mark infringement, it is open to the accused to raise any defence which he might raise in corresponding civil proceedings (see the House of Lords ruling in R v Johnson  UKHL 28), a defendant in criminal proceedings might be expected to raise issues such as invalidity on any number of grounds, not to mention arguing the toss under the Protocol to Article 69 of the EPC on the issue of infringement;
* The possibility will arise for an aggrieved patent owner to seek to invoke the threat of prosecution for criminal infringement as a way of discouraging secondary infringers such as distributors and retailers from handling allegedly infringing goods. Would and should a patent owner who presses the police to prosecute be liable for wrongful threats?PatLit would like to hear from readers as to whether they consider the general criminalisation of patent infringement (i) necessary, (ii) desirable or (iii) unfeasible. Comments, please!
* If criminal law is to remain an important component of the protection of both rights owners and society at large in the fields of trade mark and copyright infringement, are the grounds upon which patent infringers are either included or excluded from that group clearly understood?