Patent Infringement Analysis In India

Introduction

Any organization needs to guard its inventions, ideas and creations in today's world; patent analysis is an effective way to go about this. Especially in India, where the patent system has been actively reformed in the recent past, it is crucial to understand the procedure of how to effectively carry out the infringement search/investigation when you are either the owner of the patent right or if you are the one who might have unknowingly transgressed a patent owner's right.

References

• "Infringement Searches," IIPRD, available at https://www.iiprd.com/infringement-search/.
• "How to Conduct a Patent Infringement Analysis," Vakilsearch Blog, available at https://vakilsearch.com/blog/how-to-conduct-a-patent-infringement-analysis/.
• "Patent Infringement Analysis," SlideShare, available at https://www.slideshare.net/slideshow/patent-infringement-analysis/45407242.
• Siddhant Sharma, "Patent Infringement Analysis," LinkedIn, available at https://www.linkedin.com/pulse/patent-infringement-analysis-siddhant-sharma/.
• "Infringement Analysis," Brainiac IP Solutions, available at https://brainiac.co.in/infringement-analysis.php.

Defining the scope of a patent

The first action that has to be accomplished while embarking on the exercise of conducting a patent infringement analysis in India is to gain a fundamental appreciation of the scope of the patent in question. Examine claim sections of your patent as these determine the facets to be protected and the scope of the invention. Determine the angles of differentiation that are patentable, to inform the comparison with the product or process alleged to infringe on the holder's patent.

Patent claims are the most significant for addressing the question of scope in law – significantly more relevant than abstracts or descriptions. The analysis of the claims and their meaning must be clear as this will be useful in the presentation of a good case on infringement.

Finding Products or Technologies that May Infringe the Claimed Right

The next step is to undertake a detailed market survey to find specific products or services that incorporate your patented invention without permission. Such methods include direct search on the websites of potential infringing companies, databases of the particular industry, even reverse research.

When conducting your research, consider the following factors:

1. Product features and functionality: Assuming a product or service is infringing, it is essential to highlight the features, and analyse the functionality of the product or service to check whether it contains the parameters of the patented invention.
2. Manufacturing and supply chain: Survey the manufacturing and supply chain of the suspected infringers to determine whether they are related to your patented invention in any way.
3. Market presence and competition: Evaluation of the market presence and other players is required to determine those planning to or already invading one's patented space.
4. Public disclosures and announcements: Monitor the trade literature since this often provides timely information on the marketing/publicizing of an invention that utilizes your patented technology.

The identification of primary and secondary targets allows you to make a well-grounded forecast of the market situation and the representatives who can pose a threat to a business.

Comparing Claims and Elements

The next step will involve a methodological comparison of the elements of your patent claims to potentially similar products/technologies to your invention. This process is called claim mapping or claim charting.

It is also recommended to go through each element of the patent claims to find out whether the corresponding features are incorporated into the accused products or processes. This should be done literally and under the doctrine of equivalents which are commonly referred to as functional claim in which the court determines whether the accused product or process performs essentially the same function in a similar manner and to a similar effect as the patented invention.

Record your observations in an elaborate claim chart as this will help in case there is a need to go to courts. The most relevant information concerning your patent claims should be elaborated in the claim chart concerning the accused product or process, similarities or differences.

Assessing Damages and Remedies

Lastly, if your preliminary assessment determines that infringement has occurred, the proceeding step should be to evaluate the possible losses and the right legal remedies. This may involve establishing the actual loss the claimant has made due to the infringement for instance in terms of sales, market share, or price drop.

In India, the available remedies for patent infringement include:

1. Injunctions: The court may award a temporary or a permanent injunction for halting the use of the product or the process that has been infringed.
2. Monetary damages: The injured party may be granted a reasonable amount of compensation to cover the losses suffered due to infringement.
3. Accounting of profits: The court can compel the infringer to share with the injured party all the gains which he or she has realised from the infringement.
4. Seizure and destruction of infringing goods: The court may order the seizure and destruction of the product that has been under infringement or the particular means used to produce them.

In this regard, it is crucial to consult with an advocate with substantial experience in the application and prosecution of patents to help ascertain the potential damages and the avails accessible to determine what legal recourse to take for your case.

Navigating the Indian Patent Landscape:

There have been some major reforms in the Indian patent system courtesy the Patents (Amendment) Act of 2005 and setting up of authorities and courts dealing particularly in IP issues. These advances have influenced the assessment of patent infringement in the particular country.

Some key considerations when conducting patent infringement analysis in India include:

1. Patentability requirements: India has certain provisions including the prohibition of certain kind of inventions and bar of non-availability of inventive step, which may affect your patent.
2. Doctrine of equivalents: Originally, the Indian courts have also adopted the doctrine of equivalents which entitles the wider interpretation of the claims of the patents.
3. Burden of proof: India is one of the countries wherein the patent owner bears the burden of proving the infringement or the violation as a prosecution of the patent.
4. Specialized IP courts: India has instituted the Commercial Courts which are specialized IP courts that possessed exclusive original jurisdiction in patent infringement matters. These courts therefore have a set procedure and other conditions that must be taken into account.
5. Parallel proceedings: It is necessary to learn about the second proceedings that can go alongside with the first one, such as revocation of a patent or its opposition, because they can influence the infringement part of the analysis and the strategy of the lawsuit.

Considering the specific tendencies and laws of the Indian patent system, one can orient oneself to the particularities of the infringement analysis steps and, therefore, enhance the chances of gaining favourable results during enforcement or recourse to the infringement procedures.

Collaborating with Patent Attorneys

During analysis of a particular case of patent infringement, it is highly advisable to collaborate with qualified patent attorneys who are familiar with the provisions of the Indian legislation and legislation practice. These legal professionals can provide invaluable guidance and support in the following areas:

1. Claim interpretation and analysis: Infringement analysis can be properly conducted based on the patent claims, as a patent attorney can explain to you the strengths and weaknesses of the selection of these claims.
2. Infringement assessment: Consulting with attorneys may also be valuable in deciding which of your patent claims to compare the products or processes which you deem as being infringing on your patent.
3. Litigation strategy: In the case of litigation, patent attorneys are capable of outlining a whole litigation plan, along such things as claim chart, damage estimation, and the selection of the legal measure to be applied.
4. Navigating the Indian patent system: Indian patent laws and regulations must be followed, and competent patent attorneys who understand the nuances of the rules, regulations and judicial interpretation can help.
5. Dispute resolution: Occasionally, the patent attorneys as the legal advisers of the patent owners may be in a position to recommend out of court or other forms of settlement of the infringement dispute like in mediation or arbitration.

Working with qualified patent attorneys will enhance your patent infringement evaluation, your probability of success and your patent rights in the Indian market.

Therefore, a pertinent and cogent procedure has to be followed for a proper patent infringement analysis in India. Thus, if one knows the scope of the patent, knows what products or technologies may be infringing upon it, compare claims and elements, decide the damages and remedies, and the climate of the Indian patent system, one may successfully defend their innovations as well as enforce the protections against the misuse of intellectual property in this competitive market.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.