Infringement of Patents Explained…..

What to do when a patent granted is infringed by some other party who for its corporate gains is using your products for a commercial purpose and hence giving you a competition in the market in a market in which you should have a monopoly.

The remedy for above problem is to file an Infringement suit. Here are the essentials which a corporate must keep in mind before proceeding for an Infringement suit.

1. Jurisdiction.

s 104 of the Indian patents act says that the suit of Infringement must be filed in a court not lower than district court. But where the defendant takes a plea or a counter claim of “Revocation of the Patent” then the district court looses its jurisdiction and the suit is transferred to the High court. It is most likely that the suit may be transferred to High court as the defenses available to defendant is that of Revocation of patent and in these circumstances he would most likely to claim revocation of patent. Therefore there is a most likely chance that the suit will be transferred to the High court.

2. S 104 A says about the burden of proof in infringement proceedings, It is on the defendant to prove that alleged invention was not infringed. As it is difficult to proove infringement than to disapprove it. That’s why this onus is on defendant.

3. Remedies from the court-: The court can give following remedies for an infringement proceedings-:

a) Temporary Injunction.

b) Permanent Injunction.

c) Monetary damages.

However to claim temporary injunction the plaintiff has to satisfy the court on 3 grounds.

1. There is a prima facie case of infringement-: This can be proved by the evidence generated by the plaintiff here ownership of patent does not establish that there is a prima facie case of infringement, the plaintiff has to show by evidence that how defendant are using their product.

2. Balance of convenience is in favor of plaintiff, by this the plaintiff must show that if defendants are using there product that will cause competition where the plaintiff was having a monopoly.The balance of convenience is easier to prove if the patent is 6 yrs older. However if a public interest is involved than the it would become difficult to prove balance of convenience.

3. That the damage of infringement would cause irreparable damage-: The plaintiff must show damages beyond monetary damages.Where a company is new to market with its innovative products such that infringement of its product would severely effect the growth of company or put survival of the company in question.

Infringement of patents is a complex issue, here expert opinion also plays a dominant role. It is more difficult to prove infringment of recent patents than that of older patents a strong infringement suit and carefully drafted claim is the key.

Ownership Rights related to Patents

Patents when granted form a property for the Patent holder, bestowed with several rights and monopoly over the invention. A patent forms an Intellectual capital for a firm and an asset for an individual.

Like any other movable property, A patent can be conveyed to other person for a consideration and as per the terms of an agreement. With transfer of patent rights in the patent also gets transferred. some of the rights are-:

Right to produce patented product.

Right to use patented process.

Right to give license.

Right to dispose patented goods.

Right to file a suit for infringement.

Types of owner for a patent.

Individual Owner-:A person who invents a product becomes the owner of the patent by the way of applying for patent application.There is a rebut table presumption that a person who presented the application of patent becomes the owner of the patent.

Joint Owner-: Group of persons who took part in the creation of invention will become joint owner,However to determine joint ownership the joint owners must have taken part in the inventive step for the invention.

Employee-Employer-Suppose an employee of a firm invents a product as a part of its duty then the ownership of the patent is in the name of that firm if there is an agreement between an employee and the employer.

Non inventor owner-: A person who is not an inventor of the invention becomes owner by the way of contract between the inventor and that individual.

All in all in order to determine the ownership of the patent firstly the name on the patent application is given preference in presuming the ownership of the applicant, secondly any agreement between that applicant and any firm/individual would rebutt the presumption and shifts the burden of proof to applicant.