A Patent confers the exclusive right on the Patentee to make, distribute or sell the invention in India. This exclusive right is for 20 years. After 20 years, that invention becomes a public Domain. An infringement would be when any of three rights is violated. A Patentee may assign/ license all or some of these rights. The exercise of the rights so transferred in favors of the assignee or the licensee by the assignor or the licensor would not amount to infringement of the Patents.
In the case of product Patents, rights of the Patentees are infringed by any one who makes or supplies that substance commercially. In the case of a process Patent, the use of such a method or process in India by anyone other than the Patentee amounts to infringement. Whether the act of a person other than the Patentee amounts to infringement or not would depend upon.
i) The extent of the monopoly right conferred by the Patent which is interpreted from the specification and claims contained in the application of the claims would not amount to infringement.
ii) Whether he is infringing any of the monopoly rights in the patentee to make, or sell the invention.
What can amount to Infringement?
i) The colorable imitation of an invention.
ii) Immaterial variation in the invention.
iii) Mechanical equivalents.
iv) Taking essential features of the Invention.
All the above acts often overlap each other when an infringement of a Patent or process occurs.
Infringement by mechanical equivalents would occur when he uses mere substitutes for those features so as to get the same result for the same purpose as obtained by the Patentee.
Action of infringement:
Whenever the monopoly rights of the Patentee are violated, the rights are secured again by the Act through judicial Intervention. The Patentee has to Institute a suit for infringement. The relief’s which may be awarded in such a suit are-
1) Interrogatory / interim injunction.
2) Damages or account of profits.
3) Permanent injunction.
Where a suit is to be instituted?
A suit for infringement shall not be instituted in any court inferior to a District court having jurisdiction to try the suit. In appropriate cases where the High Court has original jurisdiction to try the suit shall be instituted in the High Court. When an action for infringement has been instituted in a District court and the defendants make a counter claim for revocation of the Patents the suit is transferred to the High Court for decision because High Court has the jurisdiction to try cases of revocation. The procedure followed in conducting a suit for infringement is governed by the provisions of code of civil procedure.
Period of Limitation:
The period of limitation for instituting a suit for Patent infringement is there years from the date of infringement.
When a Suit can be instituted:
A suit for infringement can be instituted only after the patent has been sealed when a specification has been accepted and published i.e. during the period when opposition has been called and is being decided, the applicants cannot institute a suit for infringement, but damages sustained due to the infringement committed during the period, i.e. between the date of publication of acceptance of complete specification and the date of damages but not suit for infringement.
When the term of the Patent has expired and infringement occurred during the term of the Patent, a suit can be instituted during the term or even after the expiry of the term. In the case of patent had lapsed and was subsequently restored, committed between the date on which Patent ceased to have effect and the date of publication of application for restoration.
When a patent was obtained wrongfully by a person and later granted to the true and first inventor, no suit for infringement can be instituted for any infringement occurring before the period of such grant to the true and first inventor. The person who institutes a suit, s not obliged to give a notice to the infringer before instituting a suit, court will issue a notice.
Who is entitled to Sue: Only a person who has a right in the Patent can institute a suit for infringement. The following persons are entitled to sue: –
ii) The exclusive licensee, if license is registered.
iii) A compulsory licensee, when
There has been a dramatic change in the Patent Law system across the world since its’ origin and embodiment in law system across the world since its’ origin and embodiment in law centuries ago. Not only the form of patent has become more refined; but also that the entire process of registration of patents has witnessed a commendable change. As a result of the recent move towards globalization, the procedure for obtaining patents has also shifted towards centralized systems which aim at saving time and related costs. At the same time, with the emerging areas of new patents are more onerous and tremendously accelerated the evolution and growth of patent law (both nationally and internationally) and has led to international initiatives towards forming an international patent convention which support centralized application for all nations in the world. This shall certainly save time and costs and lead to a utopian regime for registration and grant of patent rights, its protection and Lawful exploitation.