What are the Patent Appeals and Enforcement?

Introduction:

To enter into topics of Patent appeals and enforcement, everyone should understand first, "What is Patent Infringement?"

In simple words, we can say that unauthorized making, using offering for sale, selling any patented invention within India, or importing into India of any patented invention during the term of a patent is known as “Patent Infringement”. Section 104 to Section 114 of the PA-1970 governing provisions for the infringement of patents and Section 48 of the PA-1970 stated the patentee’s rights.

Position in the US:

For conceding U.S. Patents and registering trademarks, the United States Patent and Trademark Office is the centralized bureau is responsible. The Patent Trial and Appellate Board often called the PTAB, is a business unit within the office. This board came into existence in the 1800s.

Composition of the Board:

Board is made up of administrative patent judges, along with the director Deputy Director of the USPTO, the Commissioner of Patents, and the Commissioner for Trademarks.

Judges are responsible for adjudicating two different types of cases.

1. They decide appeals from adverse decisions of patent examiners as to questions of patentability in patent applications. The board’s role is to decide the correctness of the examiner’s decision.

2. The judges conduct trials established under the America Invents Act (AIA) to determine the patentability of issued patents.

Administrative Patent Judges: The typical background of an Administrative Patent Judge is someone who has a technical background in an electrical engineering field or a science field as well as patent law expertise.

The trial proceedings under AIA were proposed to be an option to district courts litigation with numerous basic distinctions from proceedings at the district court.

Presently, the PTAB settle on nearly 12,000 appeals and 1,500 trial proceedings every annum. A decision delivered by PTAB might be appealed to US Courts of Appeals for the federal circuit.

Position in India:

In India, there are four systems for dispute resolution and their jurisdictional extent in regards to the dispute of patents is as follows:

1. Indian Patent Office (IPO)- The patent application which obeys the rules of Indian Patent laws, granted by patent examiners after thoroughly examining it. IPO also taking participation is post-grant opposition of patents. The basic function of the IPO devising and executing policy and measures.

2. IP Appellate Board (IPAB)- IPAB came into existence in April 2017 for the resolving patent related litigations. It has the same power as high courts. IPAB mainly deals with proceedings that are related to revocation of patents and the appeals which occurred through the decree of the controller of patents.

3. District Courts and High Courts: The district courts are the first adjudicating body that can attend the matters regarding infringement of patents in the type of suits. Further, High Courts attend and gives the decision in matters which are appeals occurring out of the decree of the district court.

4. Supreme Court: The decree given by the High Court and IPAB attain and give a decision by the Supreme Court. As the Supreme Court is the supreme authority of courts hence the decision of the Supreme Court is full and final and further, not appealable.

Patent Enforcement:

The owner has the authority to enforce the patent, subsequent to a patent that has been issued. The majority of true patent owners begin by negotiating with the infringer because enforcing a patent is a lengthy and costly procedure. Frequently, mediation finish with the infringer approving to disburse a fee of a license to the patent owner so that the infringer can continue to utilize the invention. With the assistance of an attorney, if negotiations do not succeed, the patent owner will require composing a determination that there is an infringement and file court action to enforce the patent.

In the US, patent enforcement is administered by US Federal Law. Federal district courts have jurisdiction over patent infringement claims and other civil cases occurring out of patents. The district court’s appeals reviews by the Federal Circuit.

To decide whether there is a patent infringement or not, you will require to look strictly at the patent’s claims, which are statements in the patent that denote the extent of the invention. When fundamentals of a patent claim equal with elements of the accused product, which can be called "reading on" or "teaching" the product, there is infringement. Courts also apply a “Doctrine of Equivalents” (DOE), which signifies that the invention and the product of the accused are adequately identified in what they execute and how they carry out so that infringement should be established.

The owner prevents others to cease and desist from practicing the inventions patented, can gives license of a patent for utilization and can start the litigation for infringement of patents. Before goes deep into patent enforcement proceedings, first understand the “determination of damages in patent infringement suit”

Determination of Damages in Patent Infringement Suit:

Commonly, if an owner of a patent can prove that patent infringement is done with his/her parent then he/she must be eligible to get damages which is not less than a reasonable royalty. A fair market cost of a license that the infringer would have to pay if buys from the true owner for utilization is known as a reasonable royalty. Optionally, the True owner of the patent has the choice to recovered its vanished revenue, which the income that the true owner has gained but for the infringement.

Cease-and-Desist letters are the most initial step in Patent enforcement. A cease and desist letter can be common or particular with its benefits and drawbacks to each. A particular/specific letter consists of detailed claim charts and analyses, screening the suspected infringer that the position of the true patent owner is high. But the drawback of the specific notice is that it can authorize the accused infringer to file an action for declaratory judgment, in the discussion of selecting, for invalidity, and non-infringement.

Conclusion:

Patent appeals and enforcement both are long-lasting and complex procedures. There are various procedural, technical, and legal issues occurring in the process of making and taking lawful action. In this article, we have commented on some of those problems that have practical repercussions. So, it can be beneficial in drafting future efficient enforcement strategies.

know more about patents law in India, see the video below -

BY-

Sushama Mahasurle