In India, patent infringement with respect to a patented invention without the prior permission from the patent holder is a prohibited act. A patent holder can grant a permission, if required, in the form of a license. A patent infringement, usually with respect to usage or sale of the patented invention, may vary by jurisdictions. In several countries, a use is intended to be commercial in order to constitute patent infringement.
Generally, the defined claims of the invention comprise the scope of the patented invention or the extent of protection required. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder. Patents are meant to be protective, and infringement is only possible in a country where a patent is enforced upon. The scope of protection varies from country to country, as the respective patent office examines the invention according to their rules and regulation depending upon the differences for rules of patentability.
TYPES OF INFRINGEMENT
There are two types of infringements as mentioned below:
Direct infringement - occurs when a product is substantially close to any patented product or in a case where the marketing or commercial use of the invention is carried out without the permission of the owner of the invention.
Indirect infringement - occurs when some amount of deceit or accidental infringement happens without any intension of infringement.
Whenever there is a case where monopoly rights of the patentee are violated, the rights of the patentee are secured by the Act through judicial intervention. The patentee has to institute a suit for infringement. The reliefs which may be availed in such a suit are:
1. Interlocutory/ interim injunction
2. Damages or account of profits
3. Permanent injunction
Enforcement of a suit
Section 104 of the Act provides that a suit for infringement cannot be instituted in any court inferior to a District Court having jurisdiction to try the suit other than High Court, in an appropriate situation. When an action for infringement has been instituted in a high court and district court and the defendants make a counter claim for revocation of the patents, the suit is transferred to the High Court for decision because high court has the jurisdiction to try cases of revocation. Further, section 104A provides for burden of proof in case of suits concerning infringement.
When a suit can be enforced
From the period of a patent being sealed, a suit for infringement can be instituted. Further, during the period where the opposition is being decided, the applicants cannot institute a suit for infringement. However, the damages sustained due to the infringement, i.e. between the date of publication of complete specification and the date of grant may be claimed in a different suit.
In a situation where the term of the patent has expired and the infringement occurs during the said term of the patent, a suit can be instituted even after the expiry of the term. Further, in a case where a patent is obtained wrongfully by a person and is granted to the true and first inventor, no suit for infringement can be enforced before the period of such grant to the true and first inventor.
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.