The Indian patent act, 1970 (IPA), though has not explicitly defined infringement, any act amounting to violation of the rights of the patentee or encroaching the rights of the patentee, or any act which directly or indirectly aims at attacking the patent or the elements which contributed in the making of the patented product or process may be referred to as an infringement. A patent entitles the owner with certain exclusive rights and excludes others from making, using, offering for sale, or importing the product in the country of patent protection without express consent of the Patentee. The Sections 104 to section 115 of the IPA, 1970 deals with the suits concerning the infringement of patents.
Types of Infringement
Broadly infringement may be classified as:
- Direct Infringement: When the subject matter covered in the patent specification is copied as it is by the alleged infringer i.e. the function of the patented product or patented process is completely same as the subject matter which has been claimed in the alleged product or process then, it may be termed as direct infringement as it is the claims which decide the scope of protection of an invention. In a direct infringement, the steps involved in a claim of the patent (which is believed to have been infringed) are copied or are executed in the same manner as prescribed. In short, when the elements of the invention in the prior art is adopted in whole by the alleged product or process it is direct infringement.
- Indirect Infringement: When the infringement is not directly performed by the infringer but, is performed via a third party or an indirect source, it may be referred to as an indirect infringement. Equivalence may also be considered as a method of indirect infringement where if the elements in a patent and the elements in the infringed product may be superficially appear to be different but are significantly same fundamentally. Similar criterion may be considered for indirect infringement with respect to the process involved in evolving a new product or process. Indirect infringement takes place when a person induces the other to infringe a patent or contributes in an alleged act of infringement by encouraging it knowingly.
Infringement need not always be intentional. The person infringing a patented product or the process or both is referred to as an infringer. Often times the infringer gets to know about the infringement when a suit is filed against them.
What is not considered as an act of infringement?
The Indian patent law [Section 107-A of the IPA, 1970] refers to certain acts which are not considered as an infringement. The sec 107 –A (a) can be considered synonymous to the Bolar provision in the Indian context. It states that, “any act of making, constructing, using or selling a patented invention solely for uses reasonable relating to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use or sale of any product”. Hence, a patent which is utilised for further research by another party (a person, research organisation etc.) does not amount to infringement.
Further, [Section 107-A (b) of the IPA, 1970] refers to “importation of patented products by any person from a person (who is duly authorised under the law to produce and sell or distribute the product) shall not be considered as an infringement of patent rights” This clause is synonymous to the concept of parallel imports. When a patented product is purchased in a foreign market legally and is resold in the domestic market it is referred to as parallel imports. The concept of parallel imports is based on the clause of exhaustion of rights (which is recognised by a few countries) which means when a product is sold by the patent owner or by the person authorised by the patent owner then, the patent rights is exhausted and the patent owner can no longer exercise such rights.
If the patented invention is a product then its infringement would be the use of the product only and not the products further obtained by the use of the infringed product. Machines may be considered as an appropriate example for these cases. If the infringed invention is a process, then the act of utilising the process by adopting it for achieving the desired product or the result is considered as an infringement. Also if the patent being infringed is a product and the process both, then not just the utilisation of the product but also sale of it is an act of infringement. Reassembling of a patented product also falls in the purview of infringement.
Understanding an Infringement:
Patent infringement means that the essential integers or their combinations incorporated in the alleged product or process, if at all, are copied from the existing prior art. It clearly implies that it’s not a patent that infringes the patent but the essential integers utilised for working of the alleged product or process Equivalence is a phenomenon where though the alleged product or process may not be literally infringing but may be considered as an infringement if the substance or the crux of the alleged product or process stands equivalent to the patented invention.
To further understand whether the alleged product or process falls within the scope of infringement the steps or the elements described in each of the claims should be compared. The construction of a claim is to be understood while proving an infringement or ascertaining non-infringement. The scope, field of invention, and reference to prior art should be taken into consideration while comprehending the claim construction. It is to be taken an utmost care that the claims are not anticipated by a prior art.
As per Section 107-A (b) of the IPA, 1970, a suit for infringement of a patent cannot be instituted in any court inferior to a district court having jurisdiction to try the suit. The burden of proof for proving an infringement lies with the plaintiff as the alleged product or process falling within the scope of patent claims is corresponding to trespass. It becomes the responsibility of the patent holder, who is the plaintiff to prove that the defendant, who is the alleged infringer, has infringed the elements of the patent. Intangible property’s evaluation in terms of theft, regulation, ownership violations is difficult. The only way to deal with it is effective regulatory mechanisms and bodies to ensure the right implementation of the rules.