Patent Infringements
Introduction:
Patent is a very important type of Intellectual Property (IP). They are legal documents granted by government authorities that provide inventors with exclusive rights to their inventions for 20 years.
Patent infringement is very common due to patents are publicly available, anyone can access the data, without the owner’s permission but that person cannot use the data legally.
What is Patent Infringement?
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license.
When someone uses, sells, creates or imports a product that someone else already invented without the owner’s permission, then there would be patent infringement occurs.
Types of Patent Infringement:
- Direct Infringement:
Direct infringement typically needs to match all the elements or claims of the patented invention as described in the patent’s claims.
When a third party without the permission of the patent holder:
- Commercially uses the invention.
- Reproduces the invention.
- Import a protected idea or invention in India from any other country.
- Selling patented inventions.
- Offer to sell patented inventions.
There are two sub-types of Direct Infringement:
- Literal infringement:
Literal infringement is a type of direct infringement in which each and every element or structure protected by a patent is copied, or we can say a replica of the original product is used, manufactured, sold, or imported.
2. Non-literal infringement:
In this type of infringement, the invention has to pass through the “Triple Identity Test”. This means when an invention is similar to the patented invention hence performing significantly the same function, in the same way and producing the same result, even if it varies in terms of name, shape, or form, that invention will be said to be non-literal infringement of the previously patented invention.
- Indirect Infringement:
Indirect infringement of patents, also known as secondary infringement, refers to situations where a person or entity contributes to the infringement of a patent by another party.
There are two sub-types of indirect Infringement:
- Contributory Infringement:
This type of infringement may occur when a person or entity knowingly provides a component, part, or material that has no substantial non-infringing use and is specifically designed for use in an infringing manner.
2. Induced Infringement:
This type of infringement may occur when a person or entity knowingly encourages another party to directly infringe a patent. This can be through actions, statements, advertising, or other means that lead someone else to engage in infringing activities.
- Case as an example
Novartis vs. Cipla
Novartis filed a case against Cipla for infringing their patents covering Onbrez (Indacaterol-drug used to treat chronic obstructive pulmonary disease) and sought damages.
The drug is protected by many (5) patents in India, which consist of product construction and process patents.
The case
In 2014, Cipla introduced a generic version of Onbrez and simultaneously filed a request to cancel Novartis’s patents.
Cipla argued that Novartis was not producing the drug domestically and instead imported only limited quantities through a licensee.
Then Novartis filed a case before the Delhi HC claiming patent infringement and damages.
Result In the Court
The Delhi High Court prohibited Cipla from producing or selling a generic copy of Novartis’s drug by issuing a temporary injunction in favor of the Plaintiff.
Conclusion:
In the case of infringement of the patent, the court shall not issue a grant against the defendant., if the defendant can explain that at the time of the infringement, they were unaware and had no valid reasons to believe that the infringed patent existed.
The Indian Patent Act, 1970 provides several remedies to address patent infringement.
Source:
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