Understanding Patent Infringement to avail maximum benefits of your IPR

How do you keep your house protected when you are not there to guard it? You lock it, right? But does locking guarantee that no unauthorized person will ever trespass your house, seeing that it is locked? Can you fully ensure that only the people, who have the key to the house, can enter the house? The answer is no. An unauthorized person can find many ways to barge into the house even without the ‘key’. So basically the lock is just acting as a deterrent. It indicates that the property is not ‘free to use’ and is under protection. In case someone enters it without permission, it calls for a legal action. Similarly when we speak of benefits of IPR, it is important to understand that patent is somewhat like ‘locks’ for your invention. It excludes others from using, selling, importing or manufacturing an invention without your permission till the patent is in force.

Understanding the concept of patent is important in order to enjoy its benefits. As per the law, the owner of a patented invention can take legal action against anyone who exploits his/her creation without permission until the patent is valid. This act of unauthorized exploitation of a patented invention is called ‘patent infringement’.

Patent infringement goes against the very purpose of patent protection which includes disclosing invention details in exchange of enjoying monopoly for a certain amount of time. So, if you see your competitor producing and selling the same technology that you have developed and patented after years of hard work, it would certainly dampen your innovative spirit. As a patent holder, you can take legal action against anyone who exploits your invention without a valid permission.

Types of Infringement:

Direct Infringement: This is a clear cut case of ‘A’ copies ‘B’. It occurs when a product/process secured through a patent by A is manufactured, imported or sold without permission of A by B. It includes literal infringement or infringement by equivalence. Literal infringement happens when every element given in a claim has identical connection with the allegedly infringing product. On the other hand, infringement by equivalence occurs if there is ‘equivalence’ between the infringing device or process and the claimed elements of the patented invention, even if it is not in the literal scope of a patent claim. In other words, ‘if two devices perform the same work in substantially similar way, and deliver substantially same result, then they are the same, even though they differ in the name, form, or shape.’


Indirect Infringement: It may be induced or contributory. Induced infringement is when ‘A’ induces or encourages ‘B’ to steal C’s innovation. This type of infringement poses many challenges since it is hard to prove. Contributory infringement is found when a person indulges in unauthorized sale or offers to sell an element or component that has been protected by patent.



Legal action against infringement-one of the major benefits of IPR:

When you create something novel and useful, your goal is to bring it to your target audience, make a name in the market and enjoy the profits. However, while you are out in the competition, many entities might want to use your innovation through unfair means. A patent is your weapon to fight such entities and enjoy exclusive rights over your brainchild. Patent infringement proceedings can be initiated after the grant of a patent. There are many remedies available in a patent infringement suit including monetary relief, seizure or even destruction of infringing products, injunctions, recovery of attorney’s fees etc. In India, the patentee or the patent holder can bring the suit for infringement either at the place where the cause of action/infringing activity is occurring or in the jurisdiction where he/she carries business activities. If business activity is being carried out in more than one state, the patentee can choose the jurisdiction as per his/her preference for filing the infringement case. Generally in most of the cases, suit for infringement is brought at the place where the cause of action has arisen.

Enforcing your rights to get the benefits of IPR:

There are times where inventors are not vigilant about the developments taking place around their invention. It is important to remember that having a patent alone will not provide protection. Enforcing the patent rights will. So, once the patent has been granted, it is important to be well aware of any development which can infringe upon your exclusive rights. The liability of proof to establish that an infringement has taken place lies on the patent holder. Thus, a thorough patent search can help to identify the potential threats.

Apart from being vigilant, taking timely action against the infringer is vital to keep your patent rights intact. As per the patent law in India, the period of limitation for bringing a suit for infringement of a patent is 3 years from the date of infringement.Post 3 years, filing a suit for infringement could be considered as a personal vendetta or animosity against a competitor and could be questioned by the Court.

Lastly, patent is valid for a period of 20 years from the date of filing and needs to be renewed on yearly basis. Interestingly, the owner will not be entitled to start proceedings against infringement if the patent has become ineffective due to non-payment the patent renewal fee. So keeping a check on the deadlines is the best way to keep your patent alive.

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SS Intellectual Property Neeti Consultancy LLP, 2019

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