Author Name:   shrivatsav.n

This article deals with the various aspects of infringement in relation to patents

Infringement of Patents

Introduction
Patent infringement means the violation of the exclusive rights of the patent holder. As discussed earlier, patent rights are the exclusive rights granted by the Government to an inventor over his invention for a limited period of time. In other words, if any person exercises the exclusive rights of the patent holder without the patent owner's authorization then that person is liable for patent infringement. Sections 104-114 of the Patents Act, 1970 provide guidelines relating to patent infringement.

Unlike the Design law, the Patents law does not specify as to what would constitute infringement of a patented product or process. However, the following acts when committed without the consent of the patentee shall amount to infringement:

(i) making, using, offering for sale, selling, importing the patented product;
(ii) using the patented process, or using, offering for sale, selling or importing the product directlyobtained by that process

Types of Infringement
There are two kinds of infringement : 
Direct Infringement
Direct patent infringement is the most obvious and the most common form of patent infringement. Basically,direct patent infringement occurs when a product that is substantially close to a patented product or inventionis marketed, sold, or used commercially without permission from the owner of the patented product or invention.

Indirect Infringement

Indirect patent infringement suggests that there was some amount of deceit or accidental patent infringementin the incident. For instance, A holds a patent for a device and B manufactures a device which issubstantially similar to the A’s device. B is supplied with a product from another person C to facilitatemanufacturing of the B’s device. If the device so manufactured by B infringes upon A’s patent, then theperson C indirectly infringes A’s patent. Further, if such a product is knowingly sold or supplied, it may lead to“contributory infringement”. In the above example, if the person C knowingly supplies the product to B thenthe infringement is construed as contributory infringement.

Exclusion From Infringement
The law however enumerates certain exceptions to infringement:
(a) Experimental and Research: Any patented article or process can be used for the following purposes:
• Experiment
• Research
• Instructing the pupils
It is also permitted to make, construct, use, sell or import a patented invention solely for the uses reasonablyrelated to the development and submission of information required under any law for the time being in force,in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import ofany product. All such acts, if within the bounds as created above, cannot be challenged as infringing therights of the patentee.

(b) Parallel Importation under certain conditions: Patented article or article made by using the patented process can be imported by government for its own use. Also a patented process can be used by the government solely for its own use. Moreover the government can import any patented medicine or drug for the purposes of its own use or for distribution in any dispensary, hospital or other medical institution maintained by the government or any other dispensary, hospital or medical institution notified by the government. [Section27 & 47]


Burden of Proof
The traditional rule of burden of proof is adhered to with respect to patented product andaccordingly in case of alleged infringement of a patented product the ‘onus of proof’ rests on the plaintiff.However, TRIPS-prompted amendment inserted by way of Section 104 (A) has ‘reversed burden of proof’ incase of infringement of patented process. Under the current law, the court can at its discretion shift the burdenof proof on the defendant, in respect of process patent if either of the following two conditions is met:
(a) the subject matter of the patent is a process for obtaining a new product; or
(b) there is substantial likelihood that an identical product is made by the process and plaintiff hasmade reasonable efforts to determine the process actually used but has failed. [Section 104 (A)]
While considering whether a party has discharged the burden imposed upon him under Section 104(A), thecourt shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court thatit would be unreasonable to do so.

Doctrine of Equivalents And Doctrine of Colourable Variation

Patent infringement generally falls into two categories: literal infringement and infringement under the doctrine of equivalents. The term "literal infringement" means that each and every element recited in a claim has identical correspondence in the allegedly infringing device or process.

However, even if there is no literal infringement, a claim may be infringed under the doctrine of equivalents if some other element of the accused device or process performs substantially the same function, insubstantially the same way, to achieve substantially the same result. The doctrine of equivalents is a legal rule in most of the world's patent systems that allows a Court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.

This "expansion" of claim coverage permitted by the doctrine of equivalents, however, is not unbounded. Instead, the scope of coverage which is afforded the patent owner is limited by (i) the doctrine of "prosecution history estoppel" and (ii) the prior art.

An infringement analysis determines whether a claim in a patent literally "reads on" an accused infringer's device or process, or covers the allegedly infringing device under the doctrine of equivalents.
The steps in the analysis are:
• Construe the scope of the "literal" language of the claims.
• Compare the claims, as properly construed, with the accused device or process, to determine whether there is literal infringement.
• If there is no literal infringement, construe the scope of the claims under the doctrine of equivalents.

The doctrine of equivalents is an equitable doctrine which effectively expands the scope of the claims beyond their literal language to the true scope of the inventor's contribution to the art. However, there are limits on the scope of equivalents to which the patent owner is entitled.

 

ISBN No: 978-81-928510-1-3
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