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Patent Infringement

A patent is an exclusive right granted to an inventor or an applicant. It bestows an inventor or patent owner to manufacture, sell, offer to sell, distribute, mortgage the invention etc. If a third party without the person of the patent owner commits an act of making, using, offering for sale or selling any patented invention or importing into a country of any patented invention during the term of the patent, then it amounts to patent infringement. In India section 104 to section 114 of the Indian patent act 1970 provides the guidelines to Patent infringement.

Two Sides of Patent Infringement :
  • accusation of infringement on third party’s IP right
  • the patentee notices a third party for infringing on his product or service

When patent infringement happens, the patentee may sue for relief in the appropriate court. In India, Patent infringement cases are referred to a court not lower than a district court. The patentee may ask the court for an injunction to prevent the continuation of the patent infringement and may also ask the court for an award of damages because of the patent infringement.

Before taking any action against an infringer, the patent must be sure that
  • IP right granted to him is enforceable
  • Know the relevant prior art by conducting extensive search.
  • Know the accused infringer’s product in detail
  • Evidence of infringement in case of process claims

Possible counter claim by the infringer
  • the infringer may question on the validity of the patent, which is then decided by the court
  • The infringer may also try to say that what is being done does not constitute infringement
  • Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement

Patent infringement concerns only with the granted claim of a valid patent. Patent infringement can be of direct or indirect infringement.


Judicial proceeding concerning patent infringement :
  • Concerned parties, plaintiff and defendant, are notified in advance of the judicial rights and the judicial obligations they shall comply with during Lawsuits.
  • The parties are required to exchange the evidence before the start of the lawsuit.
  • If the plaintiff accuses the defendant of infringement then the plaintiff who has to prove it in the court with evidences.
  • In case the infringement is for a process patents then the burden of proof is shift to the defendant.
  • Either of the plaintiff and the defendant who is not satisfied with the decision of the controller may appeal to the Appellate board within three months time period from the date of the decision.
  • The plaintiff should bring the suit in the court within three years from the date of infringement according to section 40 of Indian limitation Act

Deciding factors:
Court adopts the following steps in order to conclude an infringement suit:
  • Scope of the patent are determined
  • Technical characteristics of the product which is accused of infringing the patent is determined
  • Technical characteristics of the claims of the patent and comparison with the characteristics of the product.
  • The patentee can no longer used the content which is already abandoned against the party during prosecution of infringement

Compensation : Compensation for losses during the litigation of infringement cases is calculated as
  • The actual economic loss incurred to the patentee because of the infringement action is considered as the amount of compensation against such a loss.
  • The total profit obtained by the infringer through infringement is regarded as the amount of compensation against such a loss. Compensation amount should be profit obtained from each infringed product sold by the infringer multiplied by number of product sold.
  • A reasonable amount not less than the royalty of patent licensing is regarded as the amount of compensation against such a loss.

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