- Daniel Suarez
Patent infringement is a self-explanatory term which defines itself as a prohibited act (such as using, producing, manufacturing, etc.) with respect of a granted patent without prior permission or consent of the patent holder.
Infringement suits occur in case of differences in views between the two parties wherein one claiming infringement of patents whereas other contradicting the former. Failure of arise to a mutual consent in respect of a patent infringement leads to a litigation. In India as well as in USA the infringement of patent is mitigated using civil procedures, as for instance in USA, the civil suit is presented before the USA District Court.
- Direct Infringement: It is when the intruder has intentionally and wilfully infringed the patent right without the prior permission and sanctions of the patent holder. Direct Infringement would constitute of the following:
- Manufacture patented technology
- Use patented technology
- Offer patented technology for sale
- Import patented technology
- Pass off the patented
- Indirect Infringement: It refers to an unfair practice that does not give a clear idea that the patent was bought and sold in the market. Indirect Infringement would constitute of the following:
- Sell parts that can only be used for patented invention.
- Sell an invention with instruction on usage of a particular method which was the original patented method.
- license an invention that is originally someone else’s patent
Patent is an intangible commodity and the general view of the people to litigations for patent infringement is a display of ego fight but what one needs to understand the consequences that one faces due to such intrusions. Patent Infringement leads to a grave barrier to independent innovations
HOW TO JUDGE PATENT INFRINGEMENT:
This involves two steps:
- the claims needs to be analysed by deep and detailed study of all patent related documents.
- The claims must “read on” the accused device or the process.
In case of patent infringement the standard modus operandi used and adopted is to seek interim orders from restraining the other party from manufacturing, using, producing, or dealing with that particular invention. Upon obtaining the necessary injunction, the litigants can initiate trial proceedings.
In certain countries like India & USA, patent infringement is considered to be a civil wrong and is handled by provisions of Civil Procedure Code along with the Indian Patent Act.
Today with advancement of time, there has indeed been an advancement in various fields such as technology, media, art, etc. An attempt to explore the deeper aspects of various fields have today made beings run out of resources and forced them into a stage where they are left with limited areas to invent. This forces the being to make minute changes in the patented technologies and leading to spectulative litigations. Therefore, in today’s era one needs to fight the infringement and not the patent.
Written by Sarvesh Giri