Patent Infringement means intrusion or encroachment upon the patent rights of patent holder or patentee, where the patent is valid and legally enforceable in a given territory (patent rights are territorial and the patent granted in a specific jurisdiction is valid and enforceable only in that particular jurisdiction). In India Patents Act, 1970 governs the patent registration . The 2005 amendments, there are many litigations on patent infringements and therefore patent jurisprudence has evolved over the years with various judicial decisions on many patent related cases by the High court and Supreme court. The patent validity is being tested for innovativeness and patentability of invention.
Acts constituting Patent infringement
Section 48 of the Patents Act, 1970 gives the following rights to the patentee:
• In case of a product patent, the following acts would amount to infringement – selling or importing, making, using, offering for sale, , the product in India without the permission of the patent holder.
• In case of a process patent, the following would amount to infringement – offering for sale, using, selling or importing for these purposes the product obtained directly by that process in India without the permission of the patent holder. Any person who, without the consent of the patentee performs the above activities, is liable for infringement of the patent.
Types of Patent Infringement
• Direct infringement - which is the most common type of infringement. This type of infringement includes but not restricted to, marketing, sale or commercial use of an exact patented item or invention that performs substantially identical functions. Direct infringement may be literal or non-literal (the doctrine of equivalents). Literal infringement occurs when each component in the patent specification has been used in the alleged infringing product or process; while Non-Literal infringement occurs when the infringing device or process is similar or equivalent to the claimed invention (performs the same function, in the same way and to achieve the same result – Triple Identity Test).
• Indirect infringement is when infringement does happen but the direct infringement is facilitated by another person. Indirect infringement are of two types, inducted infringement wherein one actively induces the other person to infringe a patent by aiding, encouraging, assisting, inducing such person to do so and contributory infringement, wherein there is an intentional participation or assistance by one party in an act of infringement to the other party making them vicariously liable for the acts of the actual infringer.
Acts that does not amount to infringement
Section 107A states that the following acts don’t constitute a patent infringement -
• Any act done solely for purposes reasonably related to the development and submission of information required under any law of the land or law of a country other than India, that regulates the construction, use, manufacture, sale or import of any product.
• The import of patented products by any person from any person who is authorized by patent holder under the law to produce and sell and distribute the products.
Once the patent specifications are made available, third parties are permitted to use such information to conduct experiments for the purpose of developments on the patent. Actually, useful in case of drug manufacturers. Moreover, it is not considered as infringement if a patented product is imported into a country by a foreign party, who is authorised to do such act.
Burden of Proof in case of Patent Infringement
In any suit for infringement of a patent, the defendant may be directed to prove that the process used by him to get the product that is similar to the product of the patented process, is different from the patentee’s process. Such direction may be passed, if, the subject matter of the patent is a process for obtaining the end product; or, there is a substantial likelihood that the similar product is made by the process, and the patent holder or a person deriving title or interest in the patent from him, has been unable through reasonable efforts to determine the process used. However, before obtaining such a direction, the plaintiff has to prove that the product is identical to the product directly obtained by the patented process. In patent infringement suits the damages are not granted for the use of the patented invention during the period prior to acceptance of the patent application.
Remedies in case of Infringement
The claim of a patent by the patent holder during the infringement suit is being tested for the innovativeness and patentability of the patent. If the court is not convinced, the patent claim of the patent holder will be dismissed. Nevertheless, in case the patent right is established by the patentee, by establishing three essential elements, that is prima facie case, irreparable injury and balance of convenience, injunction orders would be passed by the court to prevent the infringement; and suitable remedies to protect the patent rights were also passed in various patent infringement, such as compensation, which shall be computed by calculating the losses suffered by the patent holder due to the infringement.
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