Patent infringement is the makes, uses, or sell of a patented item by another party without the permission of the patent holder. Patent infringement means the violation of the exclusive rights of the patent holder. The Patents Act does not specify as to what would constitute infringement of a patented product or process. However, the following acts when committed without the consent of the patentee shall amount to infringement:
i. making, using, offering for sale, selling, importing the patented product;
ii. using the patented process, or using, offering for sale, selling or importing the product directly obtained by that process
Types of Infringement – Direct & Indirect Infringement
i. Direct Infringement – This is the most obvious infringement whereby another person produces, utilizes, sells, imports a patented idea or invention without obtaining authorization.
ii. Indirect Infringement – This infringement may not directly involve patented products or process but still be considered infringement. It includes accidental infringement and when a party contributes to the infringing acts by other party.
Suit for Patent Infringement
The provisions for the suits in infringement concerning matters are provided under Chapter XVIII from section 104 to 115 of the Patents Act, 1970.
Suit for patent infringement by –
i. Patent holder
ii. Exclusive licensee – The exclusive licensee has an equivalent right to patent-holder to institute suit. As per section 109, the infringement must the one committed after the date of the licence. The patent holder is required to be made party to such a suit.
iii. Licensee – The licensee other than the exclusive licensee also has the right to institute suit for infringement. As per section 110, the licensee shall first call upon the patent holder to take proceedings to prevent any infringement of the patent and on patent holder failing to do so within 2 months, he licensee may institute proceedings. The patentee shall be made defendant to the suit.
Reliefs for infringement
i. a temporary injunction – the court can impose a temporary restraining order on the defendant until final disposal of the civil suit or for such time as stated in the court order;
ii. a permanent injunction – the court can issue a final order restraining the defendant from carrying out activities constituting patent infringement in India;
iii. damages or account of profits;
iv. delivery or destruction of infringing articles; or
v. legal costs.
Case law on Infringement - Bishwanath Prasad Radhey Shyam vs. Hindustan Metal Industries AIR 1982 SC 1444
In this case, Plaintiff had a business of manufacturing utensils at Mirzapur and similar was the business of the defendant. The old method of manufacture was risky for the workers. Thus, plaintiff invented a device and method for the manufacture of utensils and got it patented. The defendant was using Plaintiff`s method on which plaintiff filed a suit for infringement. But in the counter claim, defendant prayed for revocation of the patent contending it did not involve any inventive step. The contention of the defendant was accepted.
