This Article is written by Miss Ansari Shaheen, a final year student of University of Mumbai.

     INTRODUCTION:

It is not wrong to say that, today world is a competitive world due to this there is an emergence of innovation. This led to many businesses developed and some have become giant. Many competitions arise out of this. There would be a chance of getting company’s innovation infringes. Company whose innovation infringes can file a suit against company who infringe the innovation.

Company who files suit is known as Plaintiff.

Company to whom against the suit is filed is known as defendant.

MEANING:

A patent is exclusive right given to patentholder for the invention. Once patent is granted to patentholder no person is allowed to use the invention and idea of software. To obtain a patent, patentholder may file for an application to patent holder.

Patent can be filed in the different country and regional offices have different standards for granting patent.

The violation of these exclusive rights of patent holder or innovator is known as patent infringement. 

SECTION 104-114 OF THE PATENT ACT, 1970 PROVIDES PROVISION REGARDING PATENT INFRINGEMENT:

Section 104 of the Patent Act,1970 deals with Jurisdiction:

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. 

Section 104-A deals with the Burden of Proof:

1. In any suit for infringement of a patent, where the subject matter of patent is a process for obtaining a product, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process if, –

1. the subject matter of the patent is a process for obtaining a new product; or
2.  there is a substantial likelihood that the identical product is made by the process, and the patentee or a person deriving title or interest in the patent from him, has been unable through reasonable efforts to determine the process actually used:

Provided that the patentee or a person deriving title or interest in the patent from him first proves that the product is identical to the product directly obtained by the patented process.

2.  In considering whether a party has discharged the burden imposed upon him by sub-section (1), the court shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court that it would be unreasonable to do so.

Section 105 deals with the power of court to make declaration as to infringement:

1. Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963 (47 of 1963), any person may institute a suit for a declaration that the use by him of any process, or the making, use or sale of any article by him does not, or would not, constitute an infringement of a claim of a patent against the patentee or the holder of an exclusive licence under the patent, notwithstanding that no assertion to the contrary has been made by the patentee or the licensee, if it is shown-

1. that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgements to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and
2.  that the patentee or licensee has refused or neglected to give such an acknowledgement.

2. The costs of all parties in a suit for a declaration brought by virtue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.
3. The validity of a claim of the specification of a patent shall not be called in question in a suit for a declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.
4. A suit for a declaration may be brought by virtue of this section at any time (after the publication of grant of a patent), and references in this section to the patentee shall be construed accordingly.

Section 106 deals with the relief in cases of groundless threat:

According to this section, court has a power to grant relief in cases groundless threat;

In this, patentee has threatened to any person regarding proceeding for infringement, then such person may file a suit for,

1. Damages
2. Injunction
3. Declaration that threats are unjustable.

Section 107 deals with the defence:

1.  In any suit for infringement of a patent every ground on which it may be revoked under section 64 shall be available as a ground for defence.
2. In any suit for infringement of a patent by the making, using or importation of any machine, apparatus of other article or by the using of any process or by the importation, use or distribution or any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.

Section 108 deals with the Relief in suit for infringement:

1. The reliefs which a court may grant in any suit for infringement include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.
2. The court may also order that the goods which are found to be infringing and materials and implements, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.

Section 109 deals with right of exclusive licensee to take proceedings against infringement: 

1. The holder of an exclusive licence shall have the like right as the patentee to institute a suit in respect of any infringement of the patent committed after the date of the licence, and in awarding damages or an account of profits or granting any other relief in any such suit the court shall take into consideration any loss suffered or likely to be suffered by the exclusive licensee as such or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringement of the rights of the exclusive licensee as such.
2. In any suit for infringement of a patent by the holder of an exclusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.

Section 110 deals with Particulars of the qualifying examination for patent agents:

1. The qualifying examination referred to in clause (c)(ii) of sub-section (1) of section 126 shall consist of a written test and a viva voce examination.
2. The qualifying examination shall consist of the following papers and marks, namely: Paper I —Patents Act and Rules 100 Paper II—Drafting and interpretation of patent specifications and other documents 100 Viva Voce 100 1[(3) The qualifying marks for each written paper and for the viva voce examination shall be fifty per cent. each, of total marks and a candidate shall be declared to have passed the examination only if he obtains an aggregate of sixty per cent. of the total marks.

Section 111 deals with restriction on power of court to grant damages or account of profits for infringement:

1. In a suit for infringement of patent, damages or an account of profits shall not be granted against the defendant who proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed. Explanation. -A person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason only of the application to an article of the word “patent”, “patented” or any word or words expressing or implying that a patent has been obtained for the article, unless the number of the patent accompanies the word or words in question.
2. In any suit for infringement of a patent the court may, if it thinks fit, refuse to grant any damages or an account of profits in respect of any infringement committed after a failure to pay any renewal fee with the prescribed period and before any extension of that period.
3. 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.
4. Nothing in this section shall affect the power of the court to grant an injunction in any suit for infringement of a patent.

Section 112 deals with restriction on power of court to grant injunction in certain cases. [ Rep. by the Patents (Amendment) Act, 2002, sec. 46 (w.e.f. 20-5-2003).

Section 113 deals with Certificate of validity of specification and costs of subsequent suits for infringement thereof. 

1. If in any proceedings before the Appellate Board or a High Court for the revocation of a patent under section 64 and section 104, as the case may be, the validity of any claim of a specification is contested and that claim is found by the Appellate Board or the High Court to be valid, the Appellate Board or the High Court may certify that the validity of that claim was contested in those proceedings and was upheld.
2. Where any such certificate has been granted, then, if in any subsequent suit before a court for infringement of that claim of the patent or in any subsequent proceeding for revocation of the patent in so far as it relates to that claim, the patentee or other person relying on the validity of the claim obtains a final order or judgment in his favour, he shall be entitled to an order for the payment of his full costs, charges and expenses of and incidental to any such suit or proceeding properly incurred so far as they concern the claim in respect of which the certificate was granted, unless the court trying the suit or proceeding otherwise directs: Provided that the costs as specific in this sub-section shall not be ordered when the party disputing the validity of the claim satisfies the court that he was not aware of the grant of the certificate when he raised the dispute and withdrew forthwith such defence when he became aware of such a certificate.
3. Nothing contained in this section shall be construed as authorising the courts or the Appellate Board hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.

Section 114 deals with relief for infringement of partially valid specification:

1. If in proceedings for infringement of a patent it is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid, but that any other claim is invalid, the court may grant relief in respect of any valid claim which is infringed: Provided that the court shall not grant relief except by way of injunction save in the circumstances mentioned in sub-section (2).
2. Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned. 

    RIGHT OF THE PATENT HOLDER:

With exclusive right patentholder enjoys various privileges, by way of giving license to other person, selling and transfer by succession.

There are some rights which patentholder enjoys are;

1. Right to exploit the patent.
2. Right to grant the license.
3. Right to sue for infringement.
4. Right to surrender.
5. Right before selling.
6. Right to apply for patent of addition.

 REMEDIES:

  If someone infringes the invention of another person without his consent 

  then it leads to patent infringement. It is an illegal activity. As discussed above, 

  patentholder has a right to file a suit against the infringer, here patent holder is 

  can be known as plaintiff and infringer is known as defendant. The suit is filed 

 under Indian Patent Act.

The plaintiff can get remedies in the following ways:

1. Monetary relief for claiming a damages.
2. Injunction is a civil remedy; 

It is of two kinds,

1. Temporary Injunction: As the name suggest it is for the limited period. This relief cover a risk of injustice of the plaintiff. The main objective is to give a protection to plaintiff from the violation of his right.
2. Permanent Injunction: The permanent injunction is a final decision of the court. The temporary injunction is transferred to permanent injunction. Here decision will be given on the side of the plaintiff, if the defendant is found guilty. 

CONCLUSION:

Creativity is not every one cup of tea, if someone has created innovative idea and he has already patented it then he has exclusive right over it. The violation of these right can be led to legal battle between plaintiff and defendant. For this Indian Patent Act has been made to provide the remedies. If defendant found guilty then decision will be given in the favour of the plaintiff and if plaintiff found a guilty then decision will be given in the favour of defendant.

REFERENCE:  

1. https://lawbhoomi.com/infringement-of-patents-and-remedies-for-infringement-of-patents/
2. https://www.advocatekhoj.com/library/lawareas/patents/remedy.php?Title=Patent&STitle=Remedy%20for%20Infringement%20of%20Patent
3. https://blog.ipleaders.in/concept-patent-infringement/
4. https://indiankanoon.org/doc/1573224/

Aishwarya Says:

Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com

Join our  Whatsapp Group for latest Job Opening