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Notes

Violation of Patent Rights (Patent Infringement)

Patent infringement occurs when someone without permission from the patent holder engages in activities that are within the scope of the exclusive rights granted by the patent. In India, under the Patents Act, 1970, infringement can involve:

  • Making, using, offering for sale, selling, or importing the patented product.

  • Using the patented process or offering for sale, selling, or importing products directly obtained from that process.

Forms of Infringement:

  • Direct Infringement: Directly engaging in the activities mentioned above.

  • Indirect Infringement: This can include inducing others to infringe or contributing to infringement with knowledge of the patent and the act’s infringement nature.

  • Contributory Infringement: Supplying a component of a patented invention knowing it is especially adapted for an infringing use and not suited for substantial non-infringing use.

Defenses Against Infringement Claims:

  • Invalidity of the Patent: If the patent is not valid due to lack of novelty, non-obviousness, or failure to meet other patentability criteria, it can’t be infringed.

  • Prior Use: The accused infringer was using the invention commercially in India before the priority date of the patent.

  • Experimental Use: Use solely for experiments or research purposes that do not commercially exploit the invention.

  • Government Use: Under Section 100, if the use was authorized by the government.

Remedies Available to Patent Owner:

  1. Civil Remedies:

  • Injunctions:

    • Permanent Injunction: To prevent further infringement after a judgment.

    • Interlocutory (Preliminary) Injunction: To stop infringement during the trial process if the patent owner can show a strong case and potential for irreparable harm.

  • Damages or Account of Profits:

    • Damages: Monetary compensation for losses suffered due to infringement.

    • Account of Profits: The infringer must surrender the profits they made from using the patented invention.

  • Delivery Up or Destruction: Of infringing products or materials used to make them.

  • Declaration: Of the patent’s validity or of infringement.

  1. Criminal Remedies (though less common):
  • Punishment for Falsely Representing Patent: Under Section 120, falsely representing that an article is patented when it’s not can lead to fines or imprisonment.
  1. Customs Seizure:
  • Border Measures: Patent owners can request customs authorities to seize and detain infringing goods at the border under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007.
  1. Revocation of Patent:
  • While not a direct remedy for infringement, if the infringement claim leads to a counterclaim of invalidity, the court might order the revocation of the patent under Section 64, which could be strategic for the defendant.
  1. Settlement and Licensing:
  • Often, disputes are resolved through negotiation, leading to a licensing agreement where the infringer pays royalties to use the patented invention.

Procedure:

  • Notice: Before filing a lawsuit, it’s common to send a cease and desist notice to the alleged infringer.

  • Litigation: If unresolved, a civil suit is filed in the appropriate court, usually the High Court where the infringement occurred.

  • Evidence: Demonstrating infringement requires proving the patent’s validity, the scope of claims, and the infringing activity.

The remedies aim to compensate the patent owner for losses and deter future infringements while also balancing the rights of the patent holder with the broader interests of innovation and competition. Legal action for patent infringement can be complex, costly, and time-consuming, hence often resolved through settlements or licensing agreements.