PATENT INFRINGEMENT : KINDS AND CASE LAWS
PATENT INFRINGEMENT : KINDS AND CASE LAWS
What is a patent?
A patent is awarded to a person or corporation for any invention.It is different from discovery as discovery is something which did not exist before it was discovered ,but in patent the particular concept already existed ,only the idea is new and that idea is patented.It is granted for a limited period of 20 years,it has to registered and cannot be given again.After 20 years it goes into public domain.This protection of 20 years gives rights to patentee to have a monopoly over their creation.For 20 years the producer of the patent invention can prohibit any other party to create,sell,distribute,import the patented product or invention without taking permission from them.This specific protection is given in section 48 of the Indian Patent Act,1970
Patent Filing Process in India
PATENT INFRINGEMENT
The laws give rights to a patentee to protect their invention and any violation of such a right is infringement.It can include unauthorized selling,unauthorized changes or variations in the inventions ,or unauthorized imitation of the invention ,by a third party without the consent of the patentee
KINDS OF PATENT INFRINGEMENT
How To File Chemical Patent in India
1)Direct infringement- in simple terms it means copying the actual work or selling,marketing a patented work or an identical work.it is extremely common kind of infringement.It is divided into two categories
a) Literal –using each and every feature of the patented invention,idea and work in the infringement invention,idea ,work. It involves creating an identical work ,accurately similar to the patented work
b) non-literal- in this infringement the idea,work,invention, product may have some similar features and achieve the same result as a patented invention,idea,work,product
2) Indirect infringement-In this kind of infringement ,the infringement is contributory,in simple words it’s done by someone else,but company is still liable even if it dint originally infringe on the invention.
The types of this infringement are-
a) Contributory infringement- the company or person may have not actively participated in the infringement,but they are still liable because they must have participated in some capacity,even if that capacity was frivolous and extremely less.
b) Inducted infringement- when company or person incites the other by attracting,encouraging,luring or goading the other to infringe .The inciter must be knowingly encouraging the other to perform an infringement.
3) Willfull infringement-this kind of infringement happens when the person knows the existence of the patent,but willfully decides to infringe it .The knowledge of the existing patent is an important factor here.If the person can prove they did not the existence of the patent then that can be a suitable defense.
4) Doctrine of equivalence- The Supreme Court in Ravi kamal bali vs. Kala Tech held that the patented product and the infringement should have the same use,purpose,material,features and principles.Mere change in the structure does not mean that it is new invention.The infringement should give the same result equal to a patented product.
If a patentee finds that his patent has been infringed and misused without his considerable knowldege then he can take the following steps-
a)He can inform the alleged infringer in writing and they can settle the dispute amicably
b) If the parties fail to reach a solution, then the patentee can sue the alleged infringer within 3 years from the date of infringement.
IMPORANT CASE LAWS
1)Novartis vs. Cipla (2015)- Novartis sued Cipla for infringing on patents of Onbrez.Cipla produced a generic medicine similar to Onbrez and petitioned to revoke the patent rights given to Novartis under section 66 and 92 of the Patent act.Novartis then sued Cipla for patent infringement.The Delhi high court gave judgement in favour of Novartis and barred Cipla from infringing on the patent rights and stopped Cipla from producing and selling the generic medicines .
2)Indico Remedies Ltd v. Bristol MyersSquibb Holdings- Bristol Myers produced Apixaben and it approached the court to stop Indico Remedies from producing ‘Apixabid’ a similar generic medicine which was infringing on the patent.Though Indico Remedies requested to sell the already manufactured medicines,as it was imperative in Covid times and the generic medicines were cheaper than Bristol Myers medicines,the court rejected the request and asked Indico Remedies to stop making and selling the generic medicines.
Conclusion
Patent is an important type of Intellectual property which grants legal ,financial and emotional protection to an individual or corporation patentee.It increases the potential and value of the patentee and gives impetus to new ideas without any fear of losing their invention.It should be used in an effective way to help patentee reach their highest potential.
What is a Patent Search Report ?
