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en as is infringement of a work of copyright, but there are difficulties where the invention has not been taken in its entirety by an alleged infringer, or where some feature of the invention has been changed” (Bainbridge 2007).

Whilst effective patent infringement is essential as a protection mechanism for the value attached to a granted patent, effective legal protection is rooted in certainty of application (Merges, Menell & Lemley). Furthermore, the very purpose of patent protection is to promote innovation while striking a balance with free competition (Davis 2007); therefore as Bainbridge further asserts; “effective protection for a patentee has to be balanced by the interests of third parties who need to be able to see, from the patent specification, the extent of the monopoly granted so that they can be reasonably certain that any activities they are contemplating do not fall foul of patent law” (Bainbridge 2007).

Conversely, “a rigid approach to interpretation?.. could deprive a patentee of effective protection” (Bainbridge 2007), which further highlights the conflict of balancing competing objectives within the current system.

The conflict between these competing rights in patent law is further compounded by traditional legal approaches to interpretation of claims, which is essential to effective protection of competing rights. The current approach under UK law to interpretation is as stated in the case of Catnic Components Ltd v Hill & Smith ([1983] RPC 183). The House of Lords rejected the previous pith and marrow test and confirmed that a purposive approach should be adopted when construing patent specifications.

Lord Diplock asserted that the crux of the matter was whether practical persons skilled in the art would understand strict compliance with a particular word or phrase was intended by the patentee to be an essential requirement of the invention. If so, any variant that did not comply would fall outside the claim regardless of whether it had any effect. If the variant did have material effect, there would be no infringement.

Whilst the multifarious issues raised by the Catnic decision are outside the scope of this analysis, the Catnic test nevertheless highlights the complexity of balancing competing rights in an effective patent protection system, whilst preserving a competitive market in commerce and industry. However under the Catnic test, the pendulum seems to have swung too far in favour of the potential infringer (Turner 1999). The fundamental problem of the Catnic rationale is the presumption the purpose of the claim defines the parameters of the granted monopoly, which completely undermines the need for flexibility which is inherently necessary to accommodate “the patentee's failure to anticipate all the ways in which its invention may be used”(Turner 1999).

This conflict is compounded by Article 69 provisions of the European Patent Convention (EPC), which state that the extent of patent protection will be determined by the terms of the claims. Accordingly, the flexibility required can only be provided by appropriate interpretation of the claims (H Macqueen, C Waelde, & G Laurie (2007).

The limitations of patent protection to address technological changes is perhaps most evident in the context of software and the question of available protection for new products such as software has become a co