PATENT INFRINGEMENT
Patent Infringement refers to contravention of rights guaranteed to the patent holder without any permission or license to use, make, sell or offer to sell while the patent is in effect.1 When a patent is granted it guarantee's exclusive rights to the patent holder. Any third party can only exercise such exclusive rights of the owner upon permission. There are different ways to make requests to the owner to use such patent rights, which is generally accompanied by consideration.
Upon breach of rights of the patent owner he may sue the other party who has no right to use it. It is immaterial if the patent was being used for a lucrative business or not. Any use without permission would lead to infringement.
Patent rights are similar across the countries, India and USA have similar provisions under Patent Act.
RIGHTS GUARANTEED UNDER PATENT
An intellectual property right is an intangible asset, on which the the owner holds exclusive rights. In this age of fast moving technologies and ever evolving advancement it is very necessary to protect the interest of owner of such asset. It is very necessary to safeguard the interest of the individual who owns an intellectual property inorder to encourage innovation.
An invention which is granted a patent is guaranteed with certain rights; these rights are exclusive in nature.
The term of patent grant is 20 years from the Priority Date of the application. It prevents any third party from making, using, selling, offering sale and importing the patent product or process.2
These Rights of patentee are stated in section 48.
If any person infringes upon these rights the patent owner can bring a suit against the infringer.
TYPES OF INFRINGEMENT
DIRECT INFRINGEMENT - A direct infringement is copying the product for manufacture of a patented product without permission of the owner. When a single entity copies all the elements of a claimed product or a method is direct infringement of patent. "whoever without authority makes, uses, offers to sell, or sells any patented invention... during the term of the patent."
The intention or knowledge is an irrelevant element while deciding a case of direct infringement. Direct infringement is further classified into literal and non literal infringement.
LITERAL INFRINGEMENT- literal infringement indicates such direct infringement which has copied every element of the patented product, process or specification of patent. It means that the infringing product or process has all the elements of the claim specification. This kind of infringement is generally easy to identify since the product as whole makes no significant difference.
NON LITERAL INFRINGEMENT - On the other hand non literal is of such nature where the product or process is equivalent to the patented product or process. He further uses, sells, markets, offers for sale or imports such infringing products or processes without any permission of the owner of the patent. Under this kind of copying the product or service is not completely copied however some minor modifications are made to the product. However, the mere modification does not change the nature of the product or process. Such minor modifications are identifiable. However, a substantial modification which adds a substantially new characteristic to the product or process does not qualify as patent infringement.
Courts with time developed doctrines to ascertain if the case falls under infringement of patent.
DOCTRINE OF EQUIVALENT
Doctrine of equivalence is used by courts to determine the status of infringement, it helps the courts to determine if the product is exactly similar or substantially similar.It helps to distinguish between literal and non literal infringements.
when a product or process is modified in a way that no substantial changes are made it is not regarded as direct infringement, however, the doctrine of equivalent addresses such concerns, when the alleged product performs similar functions without much variation this doctrine comes into play. It tests the components of the product or process to determine whether the components are substantially different, if not then the defendant is held accountable for such breach.
This doctrine uses the 'All Elements Test' . According to this test each element of the product or process should be examined to determine the similarities in components instead of examining the product or process as a whole.
This test traces its origin to Graver Tank & Mfg. Co. v Linde Air Prods, Inc. by the Supreme Court of USA.
Knowledge and intention plays an important role in all elements of the test.
Function way result test- This was laid down in Graver Tank & Mfg. Co. v Linde Air Prods, Inc. by Supreme Court of USA, it held that a patentee may invoke this test to determine whether there is infringement caused if the invention performs similar functions, has similar mechanism to produce significantly similar results.3 This test states that if an alleged product performs substantially the same functions, in substantially the same way to obtain substantially similar results then it is said to infringe the patent rights of the plaintiff.
INDIRECT INFRINGEMENT - An indirect infringement on the other hand is one in which a party acts to encourage or induce a third party to directly infringe the patent. Under this kind of infringement the infringer participates indirectly by encouraging another party to infringe upon the patent.4
There are two ways in which one can cause indirect infringement firstly, by buying or importing materials that are used in a patented process. Secondly, by inducing a third party to commit a direct infringement.5 Indirect infringement is further elaborated by classifying it into induced infringement.
INDUCED INFRINGEMENT- Induced infringement involves wilful aiding of the infringing process, with or without any intention to infringe.6
This wilful aiding can be in the form of providing assistance in manufacturing, assembling patented product without license, giving instructions to help them in production of a product, printing instructions of patented items and selling them.
The plaintiff must prove that third party has actually infringed and is mere act of inducement which does not cause actual infringement is no infringement.
The alleged inducer knew that the patent existed on the product or process for which he induced the third party.7Vita-Mix Corp. v. Basic Holding, Inc.
The knowledge implies that it is not necessary to have complete knowledge of a patented product, mere knowledge of risk to infringement is sufficient. 8
CONTRIBUTORY INFRINGEMENT - Contributory infringement occurs when a person provides a product or service which does not by itself infringe upon the patent but is used by others to infringe on the patent. For instance Company A has a patent for a print now company B produced a machine which produces patented print. This kind of infringement is contributory infringement because the company contributes to indirect infringement by manufacturing such processes or products which will produce patented products.9
It is necessary to prove contributory infringement that the third party directly infringes upon by using such a product or service the patent right of the patent holder.
A contributory infringer can be made liable for all damages.
In Akamai Techs Inc. V Limelight Networks Inc it was held that if a third party did not directly infringe any of the claims but has actually induced others to infringe the patent.10
WILFUL INFRINGEMENT
Wilful infringement is such when the defendant wilfully imitates the claimed product or process. An infringement is wilful when the defendant knew that the acts he was performing are in contravention of the patent. Such a person has either disregarded the law or a patent wilfully.
However, a person who has reproduced the patent unknowingly without knowledge about the patent is not a wilful infringer.
The US Supreme Court further clarified Halo Electronics v Pulse Electronics case that it is not required to produce convincing and clear evidence of obvious infringement. The Halo rule tends to focus on wilful misconduct rather than objective recklessness which was upheld in seagate case, proving wilful misconduct reduced the burden of proof of plaintiff and increased patent protection.11
USA has a more developed patent law than India. Generally these classifications are disregarded in India.
BURDEN OF PROOF
Under section 101 of Indian Evidence Act, 1872-"whoever desires any court to give judgment ... dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person". Similarly the plaintiff is required to give factual evidence that the patent has been infringed. However, by inserting sec 104A the burden of proof has been reversed, if the court is satisfied that either the subject matter of the patent is a process for obtaining a new product or it may shift the burden on the defendant.
DEFENSES FOR PATENT INFRINGEMENT
There are certain exceptions when a third party infringes upon a patent. Section 107 of The Patents Act, 1970 elaborates the defenses to patent infringement suit, it states that if any suit is brought under Section 64 defense for the same is available as a ground for defense, section 64 mentions the grounds for revocation of patents, to decipher upon this defense it states that if any infringement is committed against a patent which is subject to revocation under any grounds mentioned under section 64 then by purview of section 107 the defendant may claim defense in such suit.12
Further section 107 also lays a defense in case of any infringement which is caused by making, using, importing any machine or using any process or distributing or using any drug if it falls in accordance with section 47. Now, section 47 gives certain grounds for government who may use or import any patented product or such objects which has patented process for its own use, section 47(4) further enumerates the provision for use or import or production of medicine or related equipments by the government for use or distribution in public health centers is subject to defense.
Further section 47(3) allows use of patented products or process by any person merely for the purpose of experiment or research.13
Footnotes
1 https://www.law.cornell.edu/wex/patent_infringement
2 Sec
3 https://nliujournalofiplaw.files.wordpress.com/2014/12/article-6.pdf
4 https://sagaciousresearch.com/blog/direct-and-indirect-understanding-the-types-of-patent-infringement/
5 https://company360.in/blog/patent-infringement-in-india-and-defences-for-the-same/
6 https://blog.ipleaders.in/an-overview-of-the-patent-infringements-and-remedies-available-in-india/
7
https://www.scmlaw.com/secondary-indirect-infringement-of-patents/#:~:text=
Two%20types%20of%20indirect%20infringement,prudent%20steps%20ahead%20of%20time.&text=
According%20to%2035%20U.S.%20Code,be%20liable%20as%20an%20infringer.%E2%80%9D
9 https://aishwaryasandeep.in/contributory-infringement-of-a-patent/
10 https://en.wikipedia.org/wiki/Akamai_Techs.,_Inc._v._Limelight_Networks,_Inc.
11 https://casetext.com/case/halo-elecs-inc-v-pulse-elecs-inc-5
12 https://ipindia.gov.in/writereaddata/Portal/ev/sections/ps107.html
13 https://ipindia.gov.in/writereaddata/Portal/ev/sections/ps107.html#:~:text=(2)%20In%20any%20suit%20for,importation%20or%20distribution%20is%20in
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