71, Section

The UK’s 1977 Patents Act (as amended) also has a very useful provision that provides that a person can apply in writing to the holder of a patent for a statement that certain activities, fully described, do or do not infringe the aforementioned patent – the request is known as a “Section 71 Letter.”

This places the patent holder on the “horns of a dilemma.” If the patent holder provides a statement that there is no infringement, then there can be no infringement case – but if the patent holder does not respond, then a declaratory judgment case can be brought with the risk of legal costs shifted to the patent holder. Worse still, where the patent holder can be portrayed as a thinly capitalized and with few assets in the EU, that patent holder may be forced to make a substantial deposit “for costs” with the court. Section 71 letters that are carefully drafted may also be useable in cases before other jurisdictions for evidentiary purposes – especially in cases involving a family member patent.

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