INTRODUCTION

Patent infringement happens when someone manufactures, uses, sells, or imports a patented invention without the patent holder's permission. This permission is usually given through a licensing agreement under which the licensee pays licensing fees to lawfully practice the patented invention. While the Indian Patents Act, of 1970 does not define "patent infringement," it lists the acts that, according to the Act, would constitute infringement such as unauthorized production or commercialization of a patented invention. To use or sell a patented invention without permission of the holder is patent infringement. So, if you patent a new smartphone charger, then no one is able to produce or sell that charger without your permission.

Various Types of Patent Infringement

The Indian law defines different types of patent infringements:

1. Direct infringement: Making, using, selling, or proposing a patented product or process without the consent of a patent holder is a direct infringement. The direct infringers are restricted from doing these as Section 48 of the Indian Patents Act gives patent holders exclusive rights to prevent these actions.

2. Indirect infringement: This occurs when a person incites or contributes to the infringement of a patent, such as:

3. Contributory Infringement: Supplying components specifically intended for use in an infringing product.

4. Inducing Infringement: Actively persuading another party to infringe on a patent.

5. Literal Infringement: This exists when a product or process matches exactly the patent claims. All the elements must integrate within the accused product to apply literal infringement.

6. Doctrine of Equivalents: A product may infringe even if it does not fall within the patent claims if, in effect, it similarly accomplishes the same purpose to reach the same result. While Indian law has not specifically mentioned a doctrine, courts here have applied its principles to limit liability avoidance in the case of minor alterations.

7. Wilful infringement: In general terms, it is the knowing infringement of a patent. Although Indian law does not mention this particular provision, courts may award higher damages to willfulness in infringement cases.

8. Equivalent infringement: It refers to the use of slightly varied technologies or processes that achieve the patented invention's result, and courts recognize this so that an infringer cannot escape liability by making minor changes.

Laws Related to Patent Infringement in India

Patent infringement in India is treated as a civil offense under Section 48 of the Patents Act, of 1970. This section provides that patent owners generally have the exclusive rights to manufacture, use, sell, or import an invention and can sue for infringement if their rights are violated. International treaties such as TRIPS (trade-related aspects of intellectual property rights) and the Paris Convention, influenced Indian patent law by setting global standards on patent protection.

Following are some key provisions of legislation:

1. Product Patent: This protects the physical invention irrespective of its mode of making. India adopted product patents in place of process patents, which it had been earlier practicing in 2005.

2. Compulsory Licensing: This is where the use of a patented invention can be authorized by the government for cases of public benefit, such as in health emergencies, without the consent of the patent owner. A case in point happened in India in the year 2012 when the country sanctioned the making of a generic version of a cancer drug so that it would be more accessible for people to buy.

3. Opposition Clauses: There are also pre-grant and post-grant opposition mechanisms that allow third parties to challenge patents to ensure that they conform to the related national and international laws.

How to prove patent infringement:

1. Demonstrating Patent Ownership: Build your case with evidence of ownership - valid patent certificate(s). Prepare for a battle to defend the validity of your patents if challenged.

2. Show Evidence of Infringement: Assemble strong and solid proof like product samples, sales records, or marketing materials to prove that an entity is illegally using your patented invention.

3. Comparison of Products: Use a claim chart to show how the infringing product matches the elements of your patent. This comparison must demonstrate the violation.

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Defenses against patent infringement

1. Obviousness Defense: this proves that the patented invention does not have sufficient newness and, by an obvious observation, would be one in the necessary relevant field at the time of the patent application. Thus, to sustain the argument, the expert testimony is relied on and cited in the prior art references.

2. Prior Use Defense: The defense claims that the accused has commercially exploited the invention even before the patent is granted. This may be supported by production records, sales receipts, and contracts, showing the invention has not been solely used by the patent holder.

3. Invalidity Defense: The defendant denies the validity of said patent at the very beginning stages, arguing that the patent does not fulfill the criteria for novelty, non-obviousness, or industrial applicability. This encompasses prior art, a lack of disclosure in the patent, and then similar procedural errata during the grant of the patent.

4. Non-infringement Defense: The accused alleges that the impugned product or process does not infringe the particular claims of the patent. This is to be supported by a detailed technical comparison and expert analyses to highlight the differences between them by emphasizing the uniqueness of the defendant's product.

5. Independent Creation Defense: The defendant shows that he invented and created the product by himself and without copying from the work of the patent holder. This may include design sketches, prototypes, development schedules, etc., that would prove or at least set up a reasonable premise to; establish the origin of development.

6. Experimental Use Defense: The defence is that such an act constitutes the use of the patented invention solely for research or experimental purposes and not under conditions designed to lead towards commercial exploitation. Most applicable in academic and research settings where a researcher may be seeking to learn more about or improve upon some invention.

CONCLUSION

The protection of patent for innovation goes with maintaining a level game field or fairness within public interest. The Indian Patents Act, 1970, spells out the rights as well as the exceptions and balances protections of inventors and accessibility with innovation. To use or sell a patented invention without permission of the holder is patent infringement. There are also various types of patent infringement like direct, prior, equivalent etc. Thus, it is a strong legal framework that brings about technological advancement in a fair way to economic prosperity.

Author : Anshika Sharma, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.