HP-2020-000016 - [2025] EWHC 1451 (Ch)

A threat of patent infringement proceedings can be in writing or verbal. It must, however, be something which conveys to the recipient that the person making the threat (i) has patent rights against “another person”, which need not be the recipient of the communication; and (ii) intends to enforce those rights by legal proceedings in the UK: see Best Buy v Worldwide Sales Corporation [2011] EWCA Civ 618, §20 (considering the equivalent provision for threats of trade mark infringement under s. 21 of the Trade Marks Act 1994); and The Noco Company v Shenzhen Carku Technology [2023] EWCA Civ 1502, §§21 and 23 (considering the version of the 1977 Act as amended from October 2017).

The threat does not have to be an express threat, but may be veiled, covert, conditional or future: Generics (UK) v Warner-Lambert [2015] EWHC 2548, §693. Whether a communication amounts to such a threat is an objective test, and is determined by reference to what a reasonable person, with knowledge of all the relevant circumstances at the date of the communication, would have understood the communication to mean, in the context of the communication as a whole. Where there is a sequence of communications, the communications must be looked at as a whole: Best Buy, §18; The Noco Company, §§26–28.