Introduction to Infringement of patents
Infringement of patents means When a patented product or any part of such patented product is taken without the consent of the owner of the patent.
Section 104 of the patent act talks about the jurisdiction in case of the suit for the infringement. In case of the suit for infringement is filed it is to be filed in the district court of the concerned jurisdiction. But if the defendant has filed a counter claim for revocation of patent the case must go to the high court with the suit foe infringement.
The court may ask the defendant to prove that the infringement does not happen if:
- The invention of the defendant is obtained by patented process.
- The inventions are identical or of the same nature and are part of the patented process but the owner of the patent cannot see that.
Remedies for Patent Infringement
Section 108(1) of the act talk about the remedies for the infringements of patent. Following are the remedies available in case of the infringement of the patents
- Injunction: It is a civil remedy and are of two kinds basically:
Temporary injunction: As the name suggest temporary injunction is given and restricted to for a certain amount of period and is limited. It is given for a fixed time so that the person who is infringing someone’s right could not keep continuing that.
Permanent injunction: Permanent injunction is granted when the case is finally decides and will contain the final reasoning of the court. If the defendant is found guilty the rights and liabilities arise on the defendant nut if he is proven innocent then the temporary injunction is dissolved and the defendant can continue using patented product.
- Damages and Accounts of profit:
The second remedy is either the plaintiff can get damages or the accounts of profit. He may wither get the damages for the loss and reputation tat has happened or he may get accounts of profit. when he chooses accounts of profit, he will only be getting the profits that have occurred to the defendants by using the plaintiff patent.
- The courts may also order the forfeiture or the seizure of the infringing products which causes the infringement.
Rights and limitations of patent
There are various rights and limitations of patent:
Rights of the patent holder
- Right to exploit the patent – A patent holder has the exclusive right as to how he will use the patent. He can use, sell , and do whatever he wants he has all rights over it.
- Right to assign the patent – The patent holder can assign any right related to his patent to whomsoever he wants.
- Right to surrender the patent – According to section 63 the patent holder can surrender his patent to the controller anytime he wants.
- Right to license the patent – The patent holder can license his patent according to section 70 of the act.
- Right to sue for infringement – The patent holder can sue a person for infringement of any of his patented rights.
- Right to claim damages and seek remedies – The patent holder can seek and claim damages for its infringement.
Limitations of a patent holder
- Compulsory licenses – The patent holder has to provide compulsory license to the authorized person under section 84.
- Use of patent by the government – The patent holder cannot say no when the government is using the patent for its own use under section 100.
- Use of invention for defense purposes – The patent cannot be used if it is against the provisions of secrecy and is used against the defense.
