Patent is one of the most important forms of Intellectual Property (IP). The term of a patent is typically 20 years from the Priority date of the application. Patent protection gives rights to a patent holder to prevent third parties from making, using, selling, offering for sale and even importing the patented product or the product made by using patented process in the respective jurisdiction.
A patent is an exclusive monopoly right, which most modern business owners leverage to optimise the commercialisation of their intellectual inventions. The patent law enables a patentee to exclude others from making, using, selling, offering for sale or importing their patented invention without their consent. In case of any infringement the patentee is entitled to seek relief, which includes an injunction, damages or an account of profits.
However, certain acts of making, using, selling or importing a patented invention by a third party, even without the consent of the patentee, are not considered to be an act of infringement. For example, Section 107(A) of the Patent Law – which is referred to as the 'Bolar provision' or 'Bolar exemption' is a safeguard against patent infringement, especially significant to pharmaceutical drugs. A landmark case of US Roche Products v Bolar Pharmaceuticals, wherein it was held that Bolar's use of the patented compound for federally mandated testing was an infringement of the patent. However, soon after this judgment, the US Congress overturned the decision by enacting a law permitting the use of patented inventions in research to seek Food and Drug Administration approval.
Violation of a patentee's right with respect to some invention is known as patent infringement. When the rights of the patent holder or the claims in the patent are violated by a third party, without the consent or license of the patent holder, such third party is said to have infringed the patent rights of patent holder. While doing a patent infringement risk analysis, it is necessary to understand the types of patent infringements to ensure that the invention is not likely to infringe any of the existing patent rights.
Types of Patent Infringement
A. Direct infringement: Direct infringement is the most apparent and common type of infringement. This infringement includes marketing, sale or commercial use of a similar patented item or invention that performs substantially identical functions. Direct infringement is of two types - literal and nonliteral. Literal infringement occurs when every component in the patent specification has been used in the alleged infringing product/ device or process. Non-literal infringement occurs when the infringing device or process may be similar or equivalent to the claimed invention (performs substantially the same function, in substantially the same way and to achieve substantially the same result.
Literal: When the accused product/process falls in the scope of patent claims then the infringement is known as literal infringement. One of such case is Polaroid Corp v. Eastman Kodak Co., where patent infringement by Eastman Kodak of Polaroid's "Instant camera technology" was considered a case of literal infringement.
Doctrine of equivalence: It is also known as nonliteral infringement. The infringement is known as doctrine of equivalence when the component or device has same function to obtain similar or same results. This infringement provides a patentee with added and fair protection for their patents.
The doctrine was adopted into the Indian legal system during a recent Indian case of Ravi Kamal Bali v. Kala Tech 8. In said case, it was alleged that the defendants infringed a patent on a tamper proof lock/seal for containers. The defence was that the product differed in material particulars from the patented product, but the court found the changes to be inconsequential and thereby, applied the doctrine.
B. Indirect infringement is when the infringement has happened, however the infringement is facilitated by someone else. Indirect infringements are of two types:
Inducted infringement – where one actively induces the other person to infringe a patent by encouraging, assisting, aiding, inducing him/her to do so. Patent infringement by inducement typically means that the inducer willingly and knowingly aided in the infringement but may or may not have specifically intended to violate a patent infringement.;
Contributory infringement – where there is an intentional participation/assistance by one party in an act of infringement to the other party making them vicariously liable for the acts of the infringer.
It is a type of indirect infringement, where a person or corporation is held liable for infringement even if they have not actively participated in infringing activities. Therefore, it happens when a party sells a product which they know is used in the infringing product. In usual cases, this product will have no commercial standing out of its use in the infringing product.
Contributory infringement is triggered when a seller provides a part or component that, while not itself infringing any patent, has a particular use as part of some other machine or composition that is covered by a patent.
Wilful Infringement – Another type of infringement
This infringement involves someone showing a serious disregard for the existence of a patent. For example, if you sued Acme for infringing on your anvil patent and found during discovery that they had it in their possession and used it to make their anvils, you will likely prevail in showing that their violation was wilful. Those found guilty of wilful infringement pay higher penalties, attorney fees, and court costs.
Case Law – Symed Labs vs. Glenmark Pharmaceuticals
In this case Symed Labs Ltd. had sued Glenmark Pharmaceuticals Laboratories before the Delhi High Court for allegedly infringing two of its patents - IN213062 & 213063. First patent was granted for "Novel intermediates for Linezolid and related compounds" while the 213063 patent was granted for "A novel process for the preparation of Linezolid and related compounds".
In the case judgement declared on Jan 09, 2015, the judge was convinced that the plaintiff had good prima facie case in favour of Symed. He further decided that protection to the patent processes ought to be granted to the plaintiff as damages will not be an efficacious remedy. There was an irreparable loss and injury because of the long uninterrupted use of patents, and the balance of convenience also lay in favour of the plaintiff. Thus, the judge granted an ad interim injunction restraining Glenmark from manufacturing, selling, offering for sale, advertising or directly or indirectly dealing in the production of Linezolid manufactured in a manner so as to result in infringement of the plaintiff's registered patents.
Intellectual property is an important asset and must be protected. Patent infringement is violation of a patentee's rights and different types of infringements have to be defended differently. Sometimes it is critical to understand the scope and meaning of the claims in the patent, because those will establish the protection an invention receives under the law. If the patent is threatened by infringement, an effective defence will protect the property rights and business operations. The infringement objects could be either "any product to be used exclusively for the producing of the patented product" or "indispensable object for the resolution of the problem by the invention". Therefore, a patentee must be aware of the types and defences of the infringements.
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.