What is a Patent?
A patent is an Intellectual Property Right conceded for an innovation an item or interaction that gives a better approach for following through with something or that offers another specialized arrangement to a problem. A patent protects patent owners for their inventions, which are granted for a limited period of 20 years.
It is an elite restraining infrastructure right to utilize the licensed development and prevent others from utilizing, making, bringing in, or selling something very similar. It is awarded to the novel inventions, that involve an inventive step, are susceptible to industrial application, and be able to be described and reproduced.
A patent provides incentives to an individual by recognizing their creativity and offering the possibility of material reward for their marketable inventions. These impetuses energize advancement, which thusly upgrades the nature of human existence.
What is Patent Infringement?
Patent infringement is a violation of the exclusive rights of patent holders. In other words, the intrusion or encroachment upon patent rights of the patent holder or patentee, where the patent is valid and legally enforceable, without the patent owner’s authorization, then is known as patent infringement. Section 104 to 115 of the Patent Act, 1970 provides guidelines for suits concerning infringement of Patent.
Section 48 of the Act, 1970, grants certain rights to the patentee, and violation of those rights will amount to infringement. Following are rights guaranteed under section 48 of the Act:
- Making, using, offering for sale or selling, and importing the product or invention in India without permission of the patentee.
- Making, using, offering for sale or selling, importing the process through which product is directly obtained in India without the permission of the patentee.
Types of Infringement?
There are several types of infringement but only two main types include all other types of infringement. The following are two main types of infringement:
When someone manufacture, use, market, offer to the market or import your patented invention, he is said to be directly infringing upon your patent rights, this is known as direct infringement. Direct infringement could be literal or nonliteral (also known as the doctrine of equivalents). While non-literal infringement occurs when the infringing device or process may be similar to the claimed invention (performs substantially the same function, in substantially the same way, and to achieve substantially the same result, literal infringement occurs when every component in the patent specification has been used in the alleged infringing product/device or process.
Indirect infringement occurs when a direct infringement takes place but is made possible by another party. There are two types of indirect infringement: inducted infringement, where one party actively induces another to violate a patent by enticing, assisting, aiding, or inducing the other party to do so; and contributory infringement, where one party intentionally participates or assists the other party in an act of infringement, holding the other party vicariously liable for the infringer’s actions.
Penalties for Patent Infringement
Chapter XX of the Patent Act, 1970 provides provisions for penalties for patent infringement. Section 118 to section 124 provides different penalties as per the provisions. The punishment under chapter XX can be given is for 6 months which can be extended to 2 years as per the infringement act. And fine to be given under chapter XX is 1 lakh which may extend to 5 lakh as per the conduct of the infringer.
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Remedies for Infringement
During legal proceedings, the patentee’s claim of the patent is examined for inventiveness and patentability. In many circumstances, the Indian judiciary would reject the patent applicant’s claim if the court is not persuaded by these arguments. However, if the patentee establishes the three necessary elements of a prima facie case, irreparable harm, and balance of convenience, the court will issue an injunction order to stop the infringement. Appropriate remedies to protect the patent rights will also be issued in various patent infringement cases.
If a patent is violated, a lawsuit may be filed in the proper court, which may be a District Court or a High Court. When a defendant files a counterclaim in response to a patent infringement lawsuit filed in district court, the matter is transferred to a higher court. In a lawsuit for patent infringement, the plaintiff may ask for an account of profits from the alleged infringer as well as an injunction, damages, or both. An order for damages or accounts for profits is not granted when the defendant demonstrates that at the time of the infringement, he did not know of and had no reason to think that the patent existed.
A patent is an exclusive right in the hand of the producer of an invention in order to protect the invention produced. The patentee is given certain rights to maintain ownership of that product or process. Any violation of those rights of the patentee will be considered an infringement upon the patent. And this conduct of the infringer may ensue some consequences of penalities.
Therefore it would liable to say that a patent shall not be manipulated into theft or violation.
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