Patent Infringement

Introduction

Patent infringement occurs when a patented invention is used, made, sold, or imported without the patent holder's permission. In India, patents serve as crucial legal protections for innovators, granting exclusive rights to exploit their inventions for a limited period (typically 20 years in most jurisdictions). This means that others are prohibited from using, making, selling, or importing the patented invention without the patent holder's permission.

Legal framework of Patent Infringement in India

The Patents Act, 1970 (hereinafter 'The Act') grants patentees the exclusive rights to prevent others from making, using, selling, or importing the patented invention during the term of the patent (Section 48 of the Act). It is pertinent to note that the suit for infringement can be filed only after a patent is granted. As per the Act, patent infringement is primarily addressed by filing a civil suit in the appropriate court. The courts interprets patent claims to determine whether the accused product or process falls within the scope of the patented invention. Importantly, the Indian legal system provides for both civil remedies and criminal penalties for patent infringement.

Types of Patent Infringement

Patent infringement in India can take various forms, including:

• Literal Infringement or Direct Infringement: When the accused product or process directly infringes upon the patented invention as described in the patent claims. For example, if a company X owns a patent on a new type of technology and Company Y begins manufacturing and selling a similar technology without first obtaining a license or permission from Company Y.

• Indirect Infringement: This occurs when a party indirectly infringes a patent by inducing others to infringe or by contributing to infringement. For example, providing components of a patented product to another party who assembles them into an infringing product.

• Wilful Infringement: Wilful infringement occurs when the infringer knew or should have known that their actions constituted infringement of a valid patent. If infringement is found to be wilful, courts may increase damages awarded to the patent holder.

• Contributory Infringement: Contributory infringement is a type of patent infringement when a person supplies components of a patented invention knowing that the components will be used to infringe a patent. For Example, if a company A supplies certain components to company B which has no other reasonable use except for in the Process X, where X is a patented process.

• Induced Infringement: Induced infringement occurs when a party with knowledge of the patent encourages or influences someone else to commit acts of infringement. For example, the person might provide someone with instructions for creating the patented invention.

Doctrines on Patent Infringement

1. Doctrine of Equivalents: Even if the accused product or process does not literally infringe, it may still infringe under the doctrine of equivalents if it performs substantially the same function in entirely the same way to achieve the same result as the patented invention. The doctrine of equivalents aims to prevent a competitor from making only minor or insubstantial changes to a patented invention to avoid infringement liability. It is based on the idea that inventors should not be able to skirt patent protection simply by slightly modifying the wording of patent claims.

1. Doctrine of Colourable Variation: The doctrine of colourable variation deals with situations where a party modifies or alters an invention in a way that appears to be different from the patented invention, but in substance, it remains the same or equivalent. The doctrine aims to prevent parties from making superficial or minor changes to an invention to avoid patent infringement If a defendant's product or process performs substantially the same function in substantially the same way to achieve substantially the same result as the patented invention, despite superficial changes, it may be deemed a colourable variation and still infringe on the patent. This doctrine ensures patent holders' rights are protected effectively.

Remedies for Patent Infringement

When patent infringement occurs, the patent holder can seek various remedies through civil litigation in court.

1. Injunction: An injunction is a court order that directs the infringing party to cease all activities that infringe upon the patent holder's rights. It prohibits further manufacture, use, sale, or importation of the infringing product or process. Injunctions are a powerful remedy to prevent ongoing infringement and preserve the exclusivity of the patent holder's rights.

2. Damages: Damages are monetary compensation awarded to the patent holder to compensate for the losses suffered due to the infringement. Following are the two major types of damages:

• Compensatory Damages: These aim to compensate the patent holder for the economic harm caused by the infringement. They may include lost profits (profits that the patent holder would have earned if not for the infringement) and reasonable royalties (the amount the infringer would have paid for a license to use the patented invention).

• Punitive Damages: In some jurisdictions, courts may award punitive or exemplary damages if the infringement was wilful. These damages are intended to punish the infringer and deter future misconduct.

3. Accounts of Profits: In cases where compensatory damages do not adequately compensate the patent holder, courts may order the infringer to account for and hand over the profits they made from the infringing activities. This remedy ensures that the infringer does not unjustly benefit from their wrongful conduct.

4. Destruction or Recall of Infringing Products: Courts may order the infringing products to be seized, destroyed, or recalled from the market. This remedy helps prevent further dissemination of infringing goods and mitigates ongoing harm to the patent holder.

Defences against allegations of Infringement

Defendants in patent infringement cases in India can assert several defences, including:

• Non-infringement: Demonstrating that their product or process does not fall within the scope of the patent claims.

• Invalidity: Challenging the validity of the patent on grounds such as lack of novelty, inventive step, or insufficient disclosure.

• Prior Use: Establishing that they were using the patented invention before the patent was granted or filed.

Exceptions to Patent Infringement and Non-Infringing activities in India

In India, there are certain exceptions and non-infringing activities recognized under the law. These exceptions and activities allow for limited use of patented inventions under specific circumstances. Here are the key exceptions and non-infringing activities related to patents:

1. Experimental Use: Use of a patented invention for experimental purposes relating to the subject matter of the invention, including research or testing. This exemption typically applies as long as the use is not commercial in nature and is related to advancing knowledge.

2. Government Use: The Indian government or any person authorized by the government can use a patented invention for government purposes. This includes cases of national emergency or public non-commercial use, subject to certain conditions and reasonable compensation to the patent holder (Section 47 of the Act).

3. Use of Patented Inventions by Persons Authorized to Work the Patented Invention: This provision allows a person who has a contractual or other relationship with the patent holder (such as a licensee) to use the patented invention in accordance with the terms of the agreement (Section 100 of the Act).

4. Parallel Imports: Importation of a patented product legitimately acquired abroad does not constitute patent infringement under certain circumstances. This allows for the importation of patented products into India when they have been put on the market elsewhere by the patent holder or with their consent.

5. Compulsory Licensing: While not an exemption per se, compulsory licensing allows a third party to use a patented invention without the consent of the patent holder under certain conditions, such as if the patented invention is not adequately worked in India or in cases of national emergency or public health crisis (Section 92 of the Act).

Case Laws

Several landmark cases have shaped patent infringement jurisprudence in India such as:

1. Shogun Organics Ltd v Gaur Hari Guchhait and Ors.: In this case, Shogun Organics Ltd, a pharmaceutical company, filed a lawsuit against Gaur Hari Guchhait and others for allegedly infringing on their patented invention. Shogun Organics claimed that the defendants were manufacturing and selling a product that violated their exclusive patent rights. It was held that disclosure to government or a public authority will not amount to prior use. The case highlights the importance of patent protection in the pharmaceutical sector and the legal complexities involved in enforcing patent rights in India.


2. Apple Inc. v. Samsung Electronics Co., Ltd.: Apple Inc., the American technology company, filed a lawsuit against Samsung Electronics Co., Ltd., a South Korean electronics manufacturer, alleging patent infringement related to smartphones and tablets. Apple claimed that Samsung's Galaxy series of smartphones and tablets infringed upon its design and utility patents. These patents covered aspects such as touchscreen technology, user interface features, and design aesthetics. A jury initially ruled in favour of Apple, finding Samsung liable for patent infringement and awarding the damages. Eventually Apple and Samsung reached a settlement in 2018, bringing an end to their global patent disputes.

Conclusion

As India continues to evolve its intellectual property regime, patent infringement remains a critical area of focus for businesses, innovators, and legal practitioners alike. Understanding the intricacies of patent infringement in India, the types of infringement, remedies and defences available will help innovators to protect their inventions and navigate the Indian market successfully.

References

1. The Patents Act, 1970
2. The Patent Rules, 2003
3. MANUAL OF PATENT OFFICE PRACTICE AND PROCEDURE
4. Frequently Asked Questions, Office of CGPDTM, INDIA 2020
5. Abhijeet Kumar Srivastava, Patent Infringement in India, International Journal of Science and Research (IJSR) ISSN: 2319-7064, https://www.ijsr.net/archive/v8i5/9051902.pdf
6. Shogun Organics Ltd v Gaur Hari Guchhait and Ors., [2019 SCC OnLine Del 9653, (2019) 263 DLT 516, (2019) 80 PTC 578), https://brieflaws.com/case-briefs/shogun-organics-ltd-v-gaur-hari-guchhait-and-others
7. Apple Inc. v. Samsung Electronics Co., Ltd. “11-CV-01846-LHK”, Case No.: 11-CV-01846-LHK, (N.D. Cal. May. 18, 2011), https://casetext.com/case/apple-inc-v-samsung-electronics-co-12