The scope of the Paris Convention’s temporary presence exception from patent infringement for visiting foreign vessels

Abstract

For the maritime industry, the Paris Convention 1 provides an important limitation to liability for patent infringement, establishing that a patent in a member country cannot be enforced against a visiting ship 2 of another member country. According to Article 5 ter : 3 In any country of the Union the following shall not be considered as infringements of the rights of a patentee: (i) the use on board vessels of other countries of the Union of devices forming the subject of his patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of the said country, provided that such devices are used there exclusively for the needs of the vessel … . 4 The characteristics and purposes of such ‘temporarily visiting’ foreign ships may vary significantly. In particular, it is possible to distinguish ships that perform international transport services, such as a traditional cargo or passenger ships, from various special-purpose ships, such as service or installation vessels for petroleum activities, renewable energy or aquaculture. Even drilling rigs, under certain circumstances, 5 may be considered to be ships belonging to this second category.