PATENT INFRIGEMENT

A patent is an invention-based legal document that defines and provides the bearer with exclusive rights to exclude others from producing, selling, or distributing such an invention. The violation of these exclusive rights of the patent holder is known as patent infringement. The patent is granted by the government for a limited period of time. This is to say that if the rights granted to the patentee are exercised by someone else who is not authorized by the patentee, then it would be considered a violation of patent rights, and the person is made liable for the same. Sections 104–115 of the Patents Act, 1970, provide provisions regarding patent infringement. The Patents Act, 1970 does not provide specifications as to what would be considered an infringement of a patented product.

TYPES OF Patent Infrigement

•Direct Infringement

•Indirect Infringement

•Contributory Infringement

•Willful Infringement

Direct infringement

This is the most common type of patent infringement. As the name suggests, when a patented product or method (or substantially similar, i.e. equivalent to them) is used, marketed, sold, offered for sale, or imported without permission of the patentee during the term of such a patent, it constitutes direct patent infringement. It is considered to be of two types, viz- literal and non-literal patent infringement.

Literal infringement : As the word “literal” signifies, literal infringement is the type of direct patent infringement where every component of the patent specifications is taken to constitute the infringing product or process. In other words, all the claims in the patent specification match the features of the infringing product or process. 

Non- literal infringement : Non-literal infringement is the type of patent infringement where the infringer has made an equivalent product or process to the patented product or process and has been using, selling, marketing, offering for sale, or importing the same without permission of the patentee during the term of such a patent. It is best to understand these with an illustration.

Indirect or induced infringement

Indirect infringement is a type of patent infringement where the patentee’s rights are involuntarily or unwillingly infringed by an infringer. It may so happen that some amount of deceit may be involved too. These days, products are becoming increasingly complex, and one end consumer product consists of multiple patented components. The manufacturer of such products cannot always have all the patent rights to the components of such products. Usually, the manufacturer takes licences for such required components to make and sell his products. But still, at times, a substantially similar product (mostly by accidents) is created because the indirect infringer had supplied some necessary components to make the substantially similar product, and the manufacturer ended up making the same without the full set of necessary permissions (licenses) for each of the patented components. An illustration will make this clearer.

Contributory infringement

Contributory patent infringement is a type of secondary patent infringement. This type of infringement happens when an indirect infringer supplies a direct infringer with a part that has no substantial non-infringing use. In other words, the indirect infringer, knowing that such essential parts (components) will make the manufacturer cause direct infringement, still supplies such parts.

Willful infringement

As the name suggests, willful infringement is the type of patent infringement in which the infringer intentionally or willfully disregards and violates the patent rights of the patentee. In other words, if the infringer had knowledge of the patent and still violated the same, then such an infringement shall be a willful infringement. So, what becomes important to establish here is that the infringer had knowledge of the patent, and the patentee has the burden to prove this to establish willful infringement. Usually, the patentee tries to discharge such onus by establishing that the infringer was duly served notice but continued infringement, nonetheless. In such a case, the infringer has the defense to show that he had taken a legal opinion on the same and continued infringement because he believed in a bona fide manner that such a patent was either invalid or his actions did not constitute infringement. If a patentee can successfully show willful infringement, then the infringer may have to face substantial pecuniary penalties that usually cover the legal fees of the patentee and even three to four times the actual damages faced by the plaintiff.

patent litigation

Essentially, patent litigation is the process through which one party sues another for making allegedly unlawful claims upon their patented invention, without the patent holder’s permission. It all starts with the patent, which is issued by a federal agency, the United States Patent and Trademark Office (USPTO). A patent holder has the right to seek to prevent others from making, offering, using, selling or importing the patented product, process, or service. A patent’s typical lifespan is 20 years from its filing date, though some only extend for 15 years. There are three main types of patents. By far the most common type of patent (roughly 90% of those issued) is a utility patent, issued for the invention of, in the USPTO’s terms, “a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof.” It grants protections for up to 20 years from the date of filing. The other two categories are design (a patent protecting any new, original, and/or ornamental design that’s part of or applied to an article of manufacture) for 15 years, and plant (a patent protecting any new or discovered asexually reproducing plant) for 20 years. 

A patent has three main sections: 

1.Cover page (basics: descriptive summary of invention, inventor(s), date patent went into effect). 

2.Specifications (greater detail, including how to manufacture the patented invention, and “embodiments”—examples of invention in use). 

3.List of claims defining and limiting the patented invention’s core elements, much like how a surveyor will mark off the boundaries of a property (“metes and bounds”). 

•The federal government does not enforce patent rights, so patent litigation is a private matter. If a patent holder believes that another party has infringed upon their patent and chooses to litigate, they will file a civil lawsuit in a U.S. district court.  

Patent revocation

•Patent revocation means cancellation of the rights granted to a person by the grant of a patent. A patent can be revoked on petition of any person interested or of the Central Government or on a counter claim in a suit for infringement of the patent by the High Court.

•Patent revocation means cancellation of the rights granted to a person by the grant of a patent.

•A patent can be revoked on petition of any person interested or of the Central Government or on a counter claim in a suit for infringement of the patent by the High Court. A patent may be revoked by the High Court on a petition filed by the Central Government, if the High Court is satisfied that the patent holder has without cause failed to comply with the request of the Central Government to make, use or exercise the patented invention for the purpose of the Government upon reasonable terms . A notice of any petition for revocation of a patent shall be served on all persons appearing from the register to be proprietors of that patent or to have shares or interests therein.

REVOCATION OF PATENT IN PUBLIC INTEREST

As per section 66 of the Patents Act, where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or prejudicial to the public, the patent may be revoked. The decision of revocation may be made after giving the patent holder an opportunity to be heard.

Revocation of Jamun patent:

Avesthagen Limited was granted a patent fut “synergistic ayurvedic/functional food bioactive composition” of application number 1076/ CHE/ 2007. The patent was for the composition consisting of jamun, lavangpatti and chundun and to be used for treatment of diabetes. Avesthagen filed for a patent in European Patent Office (EPO) for the above said composition but the patent was not granted as it did infringe upon TKDL (Traditional Knowledge Digital Library). Government of India on getting knowledge about the same revoked the aforesaid patent granted by Indian Patent Office (IPO) using Section-66 of Patents Act, 1970 i.e. on the grounds of being mischievous and prejudicial to the public.

Though Avesthagen argued that it is Traditional Knowledge (TK) that these plants are used for treating diabetes but it was not known that when given in combination they show an aggressive effect. The government countered the argument by saying that it was known that these plants were used for diabetes management for centuries and thus, this was not an invention. When plants are known to act against a particular disease, extracts would certainly perform the same function. Government also said that a patent cannot be granted for validating something that is part of TK.

REVOCATION OF PATENT FOR NON-WORKING

A patent may be revoked for non-working as per section 85 of Patents Act, 1970, if even after two year from the date of grant of first compulsory license,The patented invention has not worked in the territory of India; or The reasonable requirement of the public has not been met; or The patented invention is not available to the public at a reasonably affordable price. The application may be made by the Central Government or any person interested on Form 19 along with supporting evidence. Where the application is made by person interested, he has to set out the nature of his interest. The decision of revocation under this section is concluded within one year from the date of presenting the matter to the Controller.

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