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World Intellectual Property Day
April 26, 2008
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 Enforcement & Compliance |
Patents
What amounts to patent infringement
Infringement of a patent consists of the unauthorized making, importing, using, offering for sale or selling any patented invention within the India. An individual may be an infringer if he "actively induces infringement of a patent." Also, an individual who sells a product knowing the same to be especially made or adapted for use in an infringement of a patent shall be liable as a "contributor infringer."
What should be done if your patent is infringed
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The first thing to do is to obtain a Legal Opinion analyzing infringement and validity. This analysis should always be conducted before filing a patent infringement suit. The filing of a suit without merit or where the patent is invalid may subject the patent owner to antitrust liability or to the defense of patent misuse. If the validity analysis suggests that there is a significant risk of the patent being held invalid, the patent owner must decide whether that risk is worth taking as a finding of invalidity is binding on the patent owner in any subsequent action. |
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Next, if there is more than one potential infringer, the patent owner needs to consider who should be pursued (perhaps the competitor, but not the customer). |
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Notice Requirement: For an owner of a patent to receive damages in any action for infringement, there must be proof that the infringer had "notice" of the patent. |
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The patent owner may want to send a letter to the infringer to offer to license the patent or to put the infringer on notice of the patent, but such a letter must be carefully worded so that it does not trigger the filing of a declaratory judgment action by the potential infringer. |
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A patentee can also go for Arbitration and Conciliation for settlement of the case. |
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Last resort is filing a suit in the appropriate court. |
Why one should not infringe others patent
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If a person is found to have infringed the patent of a person then the patent owner can recover money damages in the form of a "reasonable royalty," which is the amount the patent holder could have earned in licensing the patented technology. |
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Under certain circumstances, the patent owner may recover lost profits as an alternative measure of damages. |
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The owner of the patent can bring a suit of infringement in the court of law against the infringer and can ask for injunction. |
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The patent owner may also be entitled to enjoin further use and sale of the patented invention. |
Note: that you may be liable for inducing infringement or contributing to infringement, even if you did not directly infringe a patent i.e. if you encourage or assist someone else to infringe a patent. |
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Climate Change - The Technology Challenge
Source WIPO Magazine
This article sets the scene for WIPO Magazine’s new series on the challenge to find technological solutions to climate change. The series will look at examples of climate-friendly innovation
Read More >> |
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