A supplier of goods may be liable for indirect patent infringement under s60(2) Patents Act 1977 if he supplies goods in the UK which, although not in themselves infringing, are capable of being modified, or used in conjunction with other goods, to infringe a UK patent, if the supplier knows (or it was obvious in the circumstances) that the goods are suitable for and intended by customers down the supply chain to put a patented invention into effect.

Following the Court of Appeal’s recent decision, in Grimme Maschinenfabrik GmbH & Co KG v Derek Scott (t/a Scotts Potato Machinery) [2010] EWCA 1110 (Pat), all that is required is evidence that, on the balance of probabilities some users – even a small proportion of them, whether current or future – will intend to use the goods for putting the invention into effect. Even if the supplier makes efforts (eg through notices to its customers/retailers) to ensure his goods are not used in an infringing way, if he knows (or it would be obvious) that these efforts are not successful, he may nevertheless be liable for indirect infringement. This decision puts the burden on suppliers to ensure its goods are not capable of infringing use, and/or to obtain suitable contractual protection from its customers.