The patent is a legal document that identifies the exclusive rights over an invention to the bearer preventing others from producing, reproducing, selling, marketing, or distributing such an invention. Any activity violating the exclusive right over the invention is called patent infringement. India penalises such infringement under the Patents Act 1970.
In simpler words, patent infringement concerns any patented innovation used in any manner without prior consent from the patent holder. On infringement of the patents rights in India, the patent holder has the right to take legal action and claim compensation.
What are the kinds of patent infringement?
This article is basically to know how to avoid any patent infringement. Still, before that, it is necessary to have a brief idea about the kinds of patent infringement in India:
Direct Patent Infringement
The most common kind of infringement involves the promotion, commercial use, and sale of an innovation that the inventor or a company has patented.
Direct infringement of patents occurred in the case of Xiaomi using eight standard-essential patents (SEPs), which were patent protected by Erricson.
The Delhi High Court initially imposed an injunction on the sale and marketing of the devices. Still, later on, based on an appeal before a Division Bench in the same High Court, it was allowed only to the extent of chipsets that acquired a compulsory license from Erricson.
Indirect Patent infringement
When there is a violation of the rights of a patent holder in a manner of contribution, assistance, encouragement, inducement, or support, it is considered an indirect patent infringement.
Indirect patent infringement occurred in the case of using Digital Twin Spark Ignition (DTSi) technology by TVS Motor in 2007, patented by Bajaj Auto Limited in 2005. While passing the order, the Madras High Court stated that any variant of a patented innovation violates the patent rights, even if there is no material effect upon the working of the concerned invention.
How can one avoid infringement of a patent?
One can avoid patent infringement in India in two simple steps.
Step One: Indian Patent Search
As for the registration of a trademark, the trademark search is inevitable, the same is seen in the case of patent registration. A patent search:
- Determines the probability of acquiring a grant for the proposed invention. The patent, search WIPO, and PatentScope now lists the data of the existing patents filed in India; therefore, now you can conduct Indian Patent Search using an international database.
- The WIPO Patent Search database also helps determine the claims that are likely to be filed in the patent application and the conditions to operate the patent application.
- The patent database also brings you more knowledge about similar inventions and the status of their patent applications.
Step Two: Compulsory License
If the Patent Search in India shows an existing patent, you can apply for a Compulsory License. The Controller General authorises this license to use, make or sell a particular process or product protected under the Patents Act 1970 and TRIPS Agreement.
Section 84 of the Act mentions that anyone can file an application before the Controller General for a compulsory license by fulfilling these conditions.
- The patented invention has not met the reasonable requirements of the public.
- The patented invention is too expensive for the general public
- The patented invention is not available or working in any part of India.
On being satisfied with the conditions mentioned above, the Controller grants the license moto under Sec. 92 of the Patents Act 1970.
There are several benefits of compulsory licenses, as this not only opens the door for development and innovation but also reaches a broader market. However, this provision has to be used judiciously as this is an exception to the general rule of the patent.