Define: Breaking A Patent

Breaking A Patent
Breaking A Patent
Quick Summary of Breaking A Patent

Invalidating a Patent: Invalidating a patent involves demonstrating that the patent is not legally valid or enforceable due to unlawful acquisition or improper issuance. This may occur if the patent holder has violated antitrust laws or if there was fraud or prior art that should have prevented the patent from being granted. In cases of patent infringement accusations, individuals can defend themselves by proving that the patent should not have been issued or that the patent holder is misusing the patent.

What is the dictionary definition of Breaking A Patent?
Dictionary Definition of Breaking A Patent

Breaking a patent involves demonstrating that the patent is invalid or unenforceable. This might happen if the U.S. Patent and Trademark Office issues the patent improperly or illegally due to fraud or the presence of prior art. For instance, if one company sues another for patent infringement, the defendant may attempt to establish that the patent should not have been granted or that the patent holder has misused the patent. If successful, this would invalidate the patent and dismiss the infringement allegations. Another scenario could be if a patent were granted for an invention already known or used by others before the patent application was filed. In such a case, the patent would be deemed invalid and could be broken. In essence, breaking a patent involves proving its lack of validity or enforceability, which can be used as a defence in patent infringement cases.

Full Definition Of Breaking A Patent

Patents represent a crucial component of intellectual property rights, designed to encourage innovation by granting inventors exclusive rights to their inventions for a limited period. However, the concept of “breaking” a patent, legally referred to as patent invalidation or revocation, becomes necessary in certain circumstances. This overview explores the legal framework, grounds, procedures, and implications of breaking a patent in the United Kingdom, providing a comprehensive understanding of this complex process.

Understanding Patents

A patent is a legal instrument that grants an inventor the exclusive right to make, use, sell, and distribute their invention for a set period, typically 20 years from the filing date. In the UK, patents are governed by the Patents Act 1977 and administered by the Intellectual Property Office (IPO). To qualify for patent protection, an invention must meet three primary criteria: it must be new, involve an inventive step, and be capable of industrial application.

Grounds for Breaking a Patent

Breaking a patent involves challenging its validity. The Patents Act 1977 outlines specific grounds upon which a patent can be invalidated:

  1. Lack of Novelty: If an invention is not new or has been disclosed publicly before the filing date, the patent can be invalidated. This includes any prior art that demonstrates the invention was already known.
  2. Obviousness: If the invention lacks an inventive step, meaning it would have been obvious to a person skilled in the relevant field at the time of the patent application, the patent can be challenged.
  3. Industrial Applicability: If the invention cannot be made or used in any industry, it fails to meet the requirement of industrial applicability and can be invalidated.
  4. Insufficient Disclosure: A patent must disclose the invention clearly and completely enough for a person skilled in the art to perform it. Insufficient disclosure can be grounds for revocation.
  5. Added Matter: If the patent specification includes subject matter that extends beyond the application’s content as filed, it can be invalidated for added matter.
  6. Fraud and Misrepresentation: If the patent was obtained by fraud, false suggestion, or misrepresentation, it can be challenged.

Procedures for Breaking a Patent

Challenging the validity of a patent can be done through various legal avenues, each with specific procedures:

  1. Opposition Proceedings: This process allows third parties to oppose the grant of a patent within nine months of its publication. Oppositions are filed with the IPO and can be based on any of the grounds mentioned above.
  2. Revocation Proceedings: After the opposition period, patents can still be challenged through revocation proceedings. These can be initiated by any interested party at any time during the patent’s life. The proceedings can be brought before the IPO or the Patents Court.
  3. Declaratory Judgments: An entity accused of patent infringement can seek a declaratory judgment from the court, asserting that the patent in question is invalid. This is often a defensive strategy used in patent litigation.
  4. European Patent Office (EPO) Opposition: For European patents validated in the UK, oppositions can be filed at the EPO within nine months of the patent’s publication in the European Patent Bulletin.

Legal Considerations and Case Law

Breaking a patent involves navigating complex legal and procedural landscapes, often requiring a deep understanding of patent law and related case law. Several key considerations and landmark cases have shaped the approach to patent invalidation in the UK:

  1. Burden of Proof: The burden of proof lies with the party challenging the patent. They must provide sufficient evidence to support their claims of invalidity.
  2. Standard of Proof: The standard of proof in patent invalidation cases is typically a “balance of probabilities,” meaning the evidence must show that the patent is more likely than not invalid.
  3. Case Law: Landmark cases such as Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd. [1985] RPC 59 and Pozzoli Spa v BDMO SA [2007] EWCA Civ 588 have established tests for determining inventive step and obviousness, providing valuable precedents for patent invalidation.
  4. Expert Evidence: Expert testimony is critical in patent invalidation cases, particularly in demonstrating what constitutes prior art, inventive steps, and industrial applicability.
  5. Procedural Fairness: Ensuring procedural fairness is paramount in revocation proceedings. Both parties must be able to present their case, and the tribunal or court must remain impartial and unbiased.

Implications of Breaking a Patent

Invalidating a patent has significant legal, economic, and commercial implications:

  1. Legal Implications: Once a patent is invalidated, it is as if it never existed. The patent owner loses all exclusive rights to the invention, and the decision is typically retroactive to the filing date.
  2. Economic Implications: The invalidation of a patent can have considerable economic consequences. The patent holder may lose a valuable revenue stream, while competitors may gain the freedom to operate and innovate without the threat of infringement.
  3. Commercial Implications: For businesses, breaking a competitor’s patent can open new market opportunities and reduce litigation risks. However, it can also lead to prolonged legal battles and associated costs.
  4. Innovation Ecosystem: The process of challenging and invalidating patents plays a crucial role in maintaining the integrity of the patent system. It ensures that only genuinely novel and non-obvious inventions receive protection, fostering a healthy innovation ecosystem.

Strategic Considerations for Patent Invalidation

Businesses and individuals contemplating patent invalidation must consider several strategic factors:

  1. Cost-Benefit Analysis: Patent invalidation can be costly and time-consuming. A thorough cost-benefit analysis should assess whether the potential benefits outweigh the expenses and risks.
  2. Alternative Dispute Resolution: Mediation or arbitration can sometimes resolve patent disputes more efficiently than litigation. These alternatives should be considered before pursuing formal invalidation proceedings.
  3. Portfolio Management: Companies with large patent portfolios should regularly review and manage their patents, identifying weak or potentially invalid patents to strengthen their overall portfolio.
  4. Pre-Grant Opposition: Engaging in pre-grant opposition can be a proactive strategy to prevent potentially invalid patents from being granted.
  5. Global Considerations: Patent laws and procedures vary across jurisdictions. International businesses should consider the global implications of patent invalidation and coordinate their strategies accordingly.


Breaking a patent in the United Kingdom is a complex legal process involving stringent criteria, rigorous procedures, and significant implications. While it plays a crucial role in upholding the integrity of the patent system, it requires careful navigation of legal principles, strategic considerations, and procedural nuances. Businesses and individuals can effectively manage patent disputes and contribute to a robust and fair innovation ecosystem by understanding the grounds for invalidation, the procedural avenues available, and the broader implications.

Breaking A Patent FAQ'S

No, breaking a patent is not legally permissible. If you believe a patent is invalid or not enforceable, you should challenge it through proper legal channels, such as filing a patent invalidation lawsuit.

Breaking a patent can lead to severe legal consequences, including being sued for patent infringement. If found guilty, you may be required to pay damages, cease the infringing activities, and potentially face injunctions or other penalties.

No, making slight modifications to an existing patented invention does not exempt you from patent infringement. If your modified invention still falls within the scope of the original patent claims, it can still be considered an infringement.

Generally, using a patented invention for personal use only may not be considered patent infringement. However, it is advisable to consult with a legal professional to ensure your specific circumstances do not violate any patent laws.

No, even if you independently invent the same thing as a patented invention, you cannot break the patent. The patent holder has exclusive rights to their invention, regardless of whether someone else independently came up with the same idea.

No, using a patented invention outside the country where it is patented does not exempt you from patent infringement. Patents are territorial rights, and the patent holder’s exclusive rights extend to the country where the patent is granted.

No, the patent holder’s lack of active use or enforcement does not grant you the right to break the patent. Patents provide exclusive rights to the holder, regardless of their utilization or enforcement efforts.

If you believe a patent is too broad or covers prior art, you can challenge its validity through legal means, such as filing a patent invalidation lawsuit. However, breaking the patent without proper legal proceedings is not permissible.

Accidental infringement does not exempt you from patent infringement. Even if you unintentionally infringe upon a patent, the patent holder can still take legal action against you.

Personal beliefs about fairness or justice do not justify breaking a patent. If you believe a patent is unfair or unjust, you should seek legal advice to explore appropriate legal avenues for challenging its validity or enforceability.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 11th June 2024.

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