A small presentation to understand Patent Infringement

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2. Deed
Encroachment
Patent
Infringement
A patent granted to a person bestows exclusive right to the person to make,
distribute, mortgage, or sell the invention in India. Patents are jurisdictional
rights, and are therefore restricted to a country that grants the patent.
Patents are analogous to Real-estate property. Both grant exclusive rights to
the owner. Violation of the exclusive rights of a Real-estate property by
someone who unlawfully uses an area of the real-estate property is called
"encroachment". Similarly, an encroachment upon the invention patented by
the owner is called "infringement".
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3.  Patent infringement is the unauthorized making, using, offering for sale, selling
any patented invention within India, or importing into India of any patented
invention during the term of a patent.
 In India, Section 104 to section 114 of the Indian Patents Act 1970 provides
guidelines relating to patent infringement.
 A Patent does not infringe another patent. Only a product or a process or an
apparatus can infringe a patent, and to do so the product, process or apparatus
need only infringe a single claim of the patent no matter how many claims the
patent has.
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4. PATENT INFRINGEMENT
INDIRECT
INDUCING CONTRIBUTORY
DIRECT
-Making the invention
- Using
- Selling
- Offering for sale
- Importing
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5. A B
Holds a patent for a device Manufactures a device
substantively similar to A’s
device
C
Supplies material to
facilitate B’s
manufacturing
Inducing Contributory
If B is unaware of A’s product
but C is aware
If B is aware and C participates
knowing that A’s product is patented
Indirect
Infringement
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6. Test of infringement
Determine the scope of the claim(s)
Compare the elements of the claim to the accused
product or process using the “all elements” rule:
every element required by the claim must be present in the
accused product or process either literally or under Doctrine
of Equivalents
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7.  To determine literal infringement, you must compare the accused [[product]
[method]] with each claim that [the Plaintiff] asserts is infringed, using my
instructions as to the meaning of the patent claims.
 A patent claim is literally infringed only if [the Defendant]’s [[product] [method]]
includes each and every [[element] [method step]] in that patent claim. If [the
Defendant]’s [[product] [method]] does not contain one or more [[elements]
[method steps]] recited in a claim, [the Defendant] does not literally infringe that
claim.
 You must determine literal infringement with respect to each patent claim
individually.
 The accused [[product] [method]] should be compared to the invention described
in each patent claim it is alleged to infringe. The same [[element] [method step]]
of the accused [product] [method] may satisfy more than one element of a claim.
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8. The
Claimed
Product/
Process
Element A Element B Element C Element D Literal
Infringement?
Accused #1
Accused #2
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9. The "Doctrine of Equivalents" is a judicially created, but
solely developed by courts) doctrine having a three part
"function/way/result" substantial identity test (Triple
identity or tripartite test) embodying the following steps:
■ Determine whether the accused device or process
1. performs substantially the same function as the claimed
invention.
2. operates in substantially the same way as the claimed
invention.
3. achieves substantially the same result as the claimed
invention.
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10. The
Claimed
Product/
Process
Element A Element B Element C Element D Infringement
under
Doctrine of
Equivalence?
Accused #2
Yes, if c is
technically
equivalent to
C
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11. • This is the figure of a spring loaded
putter being accused of infringement.
• It includes an hourglass shaped steel
spring as part of its shaft.
• Shaft includes a top gripping end and a
bottom end.
• Putter also includes a putter head
connected to bottom of the shaft.
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12. Kickback’ Putter v/s Accused Springback Putter
Note the diamond
shaped titanium
spring
Figure A
Hour-glass
shaped steel
spring
Figure B
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13. Diamond Shaped spring loaded “Kickback’
putter:
1. A golf club comprising:
a) A generally longitudinal extending shaft
having a top end section serving as gripping
handle for a user and bottom end;
b) A head connected with the bottom end of
said shaft for engaging a golf ball (hopefully)
when the shaft is moved in specific way; and
c) An arrangement which forms a section of
said shaft and which is more flexible than
the rest of the shaft.
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14. Spring loaded ‘Kickback’ putter (Cont.)
2. A golf club according to claim 1 wherein said
arrangement is spring.
3. A golf club according to claim 2 wherein the said
spring is diamond shaped as viewed in elevation.
4. A golf club according to claim 1 or 2 wherein said
flexible arrangement is constructed of titanium
metal.
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15. Hour Glass Shaped putter
1. A golf club comprising:
a) A generally longitudinal extending shaft
having a top end section serving as gripping
handle for a user and bottom end;
b) A head connected with the bottom end of
said shaft for engaging a golf ball (hopefully)
when the shaft is moved in specific way; and
c) An arrangement which forms a section of
said shaft and which is more flexible than
the rest of the shaft.
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16. Accused putter (Cont.)
2. A golf according to claim 1 wherein said arrangement is
spring.
3. A golf club according to claim 2 wherein the said spring
is hour glass shaped as viewed in elevation.
4. A golf club according to claim 1 or 2 wherein said
flexible arrangement is constructed of steel spring.
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17. • Claim 1: Shaft & Head recited in paragraph a & b are
found in the accused putter.
• Description of flexible arrangement as given in 1.c is
broad and does not mention any shape or type of
arrangement.
• The hour-glass shape of the accused putter is
flexible.
• All elements of Claim 1 are found in accused putter,
it can be said that the hour-glass putter literally
infringes the claim 1 kickback putter.
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18. • Claim 1 is literally infringed if the claim
1 exists or is valid if it does exist.
• However, if there exists a S-shaped
rubber putter, the claim 1 would be so
broad as not to be novel.
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19. Assuming claim 1 is invalid:
• Claim 2 is derived from claim 1 and is more detailed
(narrower) as defines flexible arrangement to be spring.
• Assuming claim 2 is valid (survives novelty requirement and
inventive step rejections).
• Then hour-glass spring is a spring and therefore accused
putter literally infringes claim 2.
• If on the other hand, claim 2 does not survive novelty and
inventive step rejections because of the s-shaped rubber
putter, then claim 2 will be invalid.
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20. Assuming claim 2 is invalid:
• Claim 3 depends on claim 2 and specifies
spring to be diamond shaped.
• The spring in accused putter is hour-glass
shaped and hence it does not literally infringes
claim 3.
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21. • Claim 4 is multi dependent claim.
• It derives from claim 1 & 2 and requires that flexible
arrangement (in case of claim 1) and the spring itself
(in case of claim 2) be made up of titanium metal.
• The spring in accused putter is made up of steel, and
so it does not literally infringe claim 4.
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22. • Because of the lack of literal infringement of claims 3 & 4, the
importance of claim 2 is apparent.
• In case claim 1 is invalid, claim 2 is the only claim that is
literally infringed by accused putter.
• It is important to convince that claim 2 is novel and non
obvious in view of the prior art s-shaped rubber putter.
• But for claim 2 (assuming claim 1 is not novel), there is no
literal infringement.
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23. The
Claimed
Product/
Process
Element A Element B Element C Element D Infringement
under
Doctrine of
Equivalence?
Accused #2
Element
c
Yes, if c is
technically
equivalent to
C
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24. • In case only claim 3 & 4 are valid (dealing with shape and
material of spring), there will be no literal infringement of
patent by accused putter.
• Therefore, in order to prove infringement, we have to resort
to doctrine of equivalents.
• To prove that claim 3 is infringed, it will have to be proved
that the hour-glass spring is technically equivalent to
diamond shaped spring.
• For claim 4 to be infringed, it will have to be proved that steel
spring is technically equivalent to titanium spring.
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25. • For this, it is important to analyze
– Whether or not the difference between the claimed
diamond shaped spring and accused hour-glass shaped
spring is insubstantial
– Whether the hour-glass spring functions in the same way
as diamond shaped spring to reach substantially the same
results
If the answer to the above is YES, then there is
infringement, otherwise there is not.
– This is a subjective test and the Jury decides this.
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