INFRINGEMENT OF PATENTS Shajeeda Tajdeen BASICS OF LAW Wed, Feb 26, 2020, at ,12:24 PM Meaning of patent: A government authority or licence conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention. Introduction: Infringement of patent means the violation of the exclusive rights of the patent holder. In other words, if any person exercises the exclusive rights of a patent holder without the patent holder’s due authorisation then the person doing so will be held liable of patent infringement. The Patents Act, 1970, specifically talks about infringement and its various aspect under sections 104-114. Unlike the Design law, the Patents law does not specify as to what would constitute an infringement of a patented product or process. However, the following acts when committed without the consent of the patentee shall amount to infringement: making, using, offering for sale, selling, importing the patented product; using the patented process, or using, offering for sale, selling or importing the product directly obtained by that process. Types of Infringement: There are two kinds of infringement: Direct Infringement: It is the most apparent and recognizable form of patent infringement. Direct Infringement of patent happens when a product that is substantially close to a patented invention or product and the same is sold, marketed or is used commercially without the permission of the owner of the patented product or invention. Indirect Infringement: In indirect infringement, there is some amount of deceit or accidental patent infringement. As for instance; ‘X’ holds a patent for a device and ‘Y’ manufactures a device which is substantially similar to the X’s device. ‘Y’ is supplied with a product from another person ‘Z’ to facilitate manufacturing of the Y’s device. If the device so manufactured by ‘Y’ infringes upon X’s patent, then the person ‘Z’ indirectly infringes X’s patent. In the said example, if the product is deliberately sold, supplied or marketed, then this may further lead to ‘contributory’ infringement. In the above case, if ‘Z’ purposefully supplies the product to ‘Y’ then this act will be termed as ‘contributory’ infringement. Exceptions to infringement: Experiment and Research: Any patented article or process can be used for the following purposes: Experiment Research Instructing the pupils. It is also allowed to make, construct, use, sell or import a patented invention solely for the uses reasonably related 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 of any product. All such acts, if within the bounds as mentioned above, then it cannot be challenged on the grounds of infringement Parallel Importation under certain conditions: As per sections 27 & 47 of the Patents Act, 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. Furthermore, the Government can import any patented medicine or drug for the purposes of its own use or for distribution in any hospital, dispensary or other medical institution maintained by the Government or any other dispensary, hospital or medical institution notified by the Government. The burden of Proof: The plaintiff is under an obligation to prove that there was an act of infringement, wherein his patented rights were infringed without his permission and knowledge. Thus, as per the Patents Acts, the onus of proof lies on the plaintiff. However, TRIPS-prompted amendment inserted by way of Section 104 (A) has ‘reversed burden of proof’ in case of infringement of patented process. Under the present law, the concept of the burden of proof in a case dealing with process patent can be shifted on to the defendant at the discretion of the Court. however, the following two conditions are taken into consideration before deciding the same: the subject matter of the patent is a process for obtaining a new product, or there is a substantial likelihood that an identical product is made by the process and plaintiff has made reasonable efforts to determine the process actually used but has failed. Section 104 (A) While taking into consideration whether a party has discharged the burden imposed upon him/her under Section 104(A), the court shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court that it would be unreasonable to do so. The doctrine of Equivalents and Doctrine of Colourable Variation: Patent Infringement can be classified into two categories: Literal infringement: It means that each and every element mentioned in the claim should identically correspond with the alleged infringed device or process. Infringement under the doctrine of equivalents: In situations where there is no literal infringement the patentee can claim for infringement under the doctrine of equivalents, wherein he/she will have to prove that some other elements of the infringers device or process perform substantially the same function in substantially the same way, to achieve substantially the same result. The doctrine of equivalents is a legal rule which is followed mostly in the entire world’s patent system. By virtue of this doctrine, a Court can hold a party liable for committing infringement even though the infringing device or process does not fall within the literal scope of a patent claim but nonetheless is equivalent to the claimed invention. This "expansion" of claim coverage permitted by the doctrine of equivalents, however, is not unconditional. Instead, the scope of coverage which is afforded to the patentee is bounded by: The doctrine of "Prosecution History Estoppel" and “The prior art”. An infringement analysis: It 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 procedure of the analysis is as follows: It is necessary to interpret and understand the ambit 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, analyse the scope of the claims under the doctrine of equivalents. The doctrine of equivalents is an equitable doctrine which effectively broadens the ambit of the claims beyond their literal language to the true scope of the inventor's contribution to the scientific industry. However, there are limits on the scope of equivalents to which the patent owner is entitled.