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Alex J.
Alex J., Solicitor
Category: Law
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Experience:  Solicitors 2 years plus PQE
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Hello. I am the MD of a UK distributor of biomedical supplies

Customer Question

Hello. I am the MD of a UK distributor of biomedical supplies and instrumentation to customers solely within the UK. Our suppliers (manufacturers/Principals) are all based outside the UK.

In each of our distributorship agreements with manufacturers/Principals, we have always insisted upon an indemnification clause to protect us in the event that the product we are selling becomes subject to a third party claim for patent or IP infringement.

We are currently negotiating a distributor agreement with a Principal based in Holland. However, in this case, our counterparty seems unwilling to indemnify us against such an event, suggesting that if an IP/patent infringement is alledged by a third party, that third party would make the claim against them, the Principal, not the distributor. I am not convinced by this.

True, we did not infringe anyone's IP through designing, copying, re-engineering or re-manufacturing anything but I am sure the third party would still be able to sue us for their 'loss' because we sold a product which realised/crystallised that third party's loss, through a successful sale of the product by us.

My question is this; In the UK (England and Scotland), can a distributor (as opposed to a manufacturer/designer/assembler) be sued for ip/patent infringement by a third party alledging such infringment?

Thank you in advance for your response(s)
Submitted: 3 years ago.
Category: Law
Expert:  Alex J. replied 3 years ago.
Hi

Thank you for your question and welcome to Just Answer.

You would potentially be in breach if you used someone else's patent without consent and in breach of s60 of the Patents Act 1977. This specifically says if you dispose of someone's patent without consent then you may be guilty of infringement.

As alternatives to an indemnity you could either consider insurance or ask the Dutch company to provide a warranty that they are the owner of the patent or are authorised under a licence to use the patent and you according are are authorised under their right to distribute the product.

I look forward to hearing from you.

Kind regards

AJ

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