A patent is an exclusive right granted by the government to the true and first inventor or to his assignee for his invention for a for a limited period of time to make, use and vend the invention upon exchange for the public disclosure of his invention
Exclusive right -to make, use, vend, assign through license
Protection -by statutes (the Patents act 1970)
Remedies - through civil and criminal law proceedings
Patents add economic and scientific value to the products
Based on research and development
High investment in making R&D facilities
Right granted for a limited period and not a permanent right.
Associated with, the prestige of the company.
Competitive nature of the companies
Increase in infringing attitude among the competitors
Associated with the price of the product
Mostly owned by MNC’s which are ready to face litigations.
IMPORTANCE OF PATENTS
(a)Patent Administrative Cases
Includes disputes on grant of a patent, patent invalidation and upholding, and compulsory licensing. Patent Office is the defendant .
(b) Patent Infringement Cases
Includes, infringement of patents, disputes relating to ownership of patent, contractual disputes, regarding assignment, patent licensing, and revocation.
Forums: Controller general of patents, IPAB,
District court, High court under Article 226/227 and
Supreme court under Article 32,133,136,or 142.
PATENT DISPUTES AND FORUM
Patent infringement is the unauthorized making, using, offering for sale, selling of any patented invention within a jurisdiction, or importing into the jurisdiction of any patented invention during the term of a patent.
Three basic types of patent infringements:
Direct patent infringement
Anyone who makes, uses, or sells the patented invention
Indirect patent infringement
A person actively encourages another to make, use, or sell the invention,
Contributory patent infringement
Knowingly, selling or supplying an item for which the only use is in connection with a patented invention
PATENT INFRINGEMENT AND TYPES
Injunction - prima facie, balance of convenience, irreparable loss
Accounts of profit- assessment of the un lawful gain by the infringer
Damages - compensatory relief for the loss.
Damages: Monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party
measure in financial terms the extent of harm a plaintiff has suffered by the defendant.
generally regarded as remedial rather than preventive or punitive
may even be more than monetary profits reaped by the defendants by the misuse of the plaintiff’s patent.
The lost profits of the patentee or a reasonable royalty on the infringer's sales, or
A combination of lost profits and a reasonable royalty award, along with interest and costs,
Punitive damages/exemplary damages :
Damages over and above compensatory damages
The infringer knew or should have known it was infringing, willful infringement
Enhanced damages up to three times the compensating award,
TYPES OF DAMAGES
4 types of damages are awardable
1. Compensatory damages -A reasonable royalty would be that amount
2. Damages based on, the "entire market value" rule -to collect damages based on the value of an entire infringing device,
3. Pre judgment and post judgment interest on an infringement award
4. Punitive damages- allows a court to award up to triple damages if the infringer has knowingly, deliberately, intentionally, willfully, or wantonly infringed the patent
It is also customary for the successful party to be granted the cost of litigation on the completion of the case.
DAMAGES UNDER U S LAW
Sec.104. No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:
Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.
Sec.105. Power of court to make declaration as to non-infringement.
Sec.106 . Power of Court to grant relief in cases of groundless threats of infringement proceedings.
Sec.108 . The reliefs which a court may grant in any suit or infringement include an injunction and, at the option of the plaintiff, either damages or an account of profits.
PATENTS ACT, 1970 Regarding Infringement
Sec.111. Restriction to grant damages or account of profits for infringement .
In a suit for infringement of a patent ,damages or an account of profits shall not be granted against the defendant when,
who proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed.
In respect of any infringement committed after a failure to pay any renewal fee within the prescribed period and before any extension of that period.
Where an amendment of a specification by way of disclaimer, correction or explanation has been allowed under this Act after the publication of the specification, no damages or account of profits shall be granted in any proceeding in respect of the use of the invention before the date of the decision allowing the amendment, unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.