Patent infringement is a violation which involves the unauthorized use, production, sale, or offer of

sale of the subject matter or Invention of another’s patent. There are many different types of patents,
such as utility patents, design patents, and plant patents. The basic idea behind patent infringement is
that unauthorized parties are not allowed to use patents without the owner’s permission.
When there is infringement of patent, the court generally compares the subject matter covered under
the patent with the used subject matter by the “infringer”, infringement occurs when the infringer
Uses patent material from in the exact form. Patent infringement is an act of any unauthorized
manufacture, sale, or use of a patented invention. Patent infringement occurs directly or indirectly.

Direct patent infringement: The most common form of infringement is direct infringement, where the
Invention that infringes patent claims is actually described, or the Invention performs substantially the
same function.

Indirect patent infringement: Another form of patent infringement is indirect infringement, which is
divided into two types:

 Infringement by inducement is any activity by any third party that causes another person
to infringe the patent directly. This may include selling parts that can only be used
realistically for a patented invention, selling an invention with instructions to use in a
certain method that infringes on a method patent or licenses an invention that is covered
by the patent of another. The inducer must assist intentional infringement, but does not
require intent to infringe on the patent.
 Contributory infringement is the sale of components of material that are made for use in a
patented invention and have no other commercial use. There is a significant overlap with
indications, but contributor violations require a high level of delay. Violations of the seller
must have direct infringement intent. To be an obligation for indirect violations, a direct
violation must also be an indirect act.
Doctrine of Equivalents And Doctrine of Colourable Variation
Patent infringement generally categorized into two, i.e. literal infringement and infringement in the
doctrine of equivalents. The term “literal infringement” means that each element heard in a claim has
the same correspondence in the alleged infringement device or process. However, even if there are no
literal violations, a claim can be infringed under the doctrine of equivalents if the accused device or
some other element of the process performs the same function, in substantially the same way to obtain
substantially the same result. The principle of equivalence is a legal rule in most patent systems in the
world that allows a court to hold a party liable for patent infringement, even though the infringing
instrument or process does not fall within the literal scope of the patent claim, but Still equal to the
claimed Invention.

This is not an expansion of coverage of a claim permitted by the principle of equivalence. Rather, the
scope of coverage given to the patent owner is limited by

(i) the “prosecution history estoppel” and

(ii) the principle of the prior art.

The analysis of infringement determines whether a claim claimed in a patent “literally reads on the
accused infringer’s instrument or process”, or covers the allegedly infringing device in the doctrine of
equivalents.
The steps in the analysis are:

 Oppose the scope of the “literal” language of claims.

 Comparing claims with the accused device or process to determine if there is a literal
violation.
 If there is no literal violation, reduce the scope of claims under the principle of equality.
The doctrine of equivalents is considered as an equitable doctrine which effectively expands the scope
of the claims beyond their literal language to the true scope of the inventor’s contribution to the art.
However, there are limitations in the scope of equivalents to which the patent owner is entitled.

Remedies for Patent Infringement

Patent infringement lawsuits can result in significantly higher losses than other types of lawsuits.
Some laws, such as the Patent Act, allow plaintiffs to recover damages. Patent infringement is the
illegal manufacture or usage of an invention or improvement of someone else’s invention or subject
matter who owns a patent issued by the Government, without taking the owner’s consent either by
consent, license or waiver. Several remedies are available to patent owners in the event of an
infringement. Measures available in patent infringement litigation may include monetary relief, equal
relief and costs, and attorneys’ fees.

Monetary Relief: Monetary relief in the form of compensatory damages is available to prevent patent
infringement:

1. Indemnity compensation – A patent owner may have lost profits for infringement when
they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be charged in cases of
will or violation of will.
3. The time period for damages – The right to damages can be claimed only after the date
when the patent was issued and only 6 years before the infringement claim is filed.
Equitable relief: Orders are issued by the court to prevent a person from doing anything or Act.
Injections are available in two forms:

1. Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that
prevent parties from doing an act that is in dispute (such as making a patent product)
2. Permanent injunction – A final order of a court which permanently ceases certain
activities or takes various other actions.

Compulsory licensing
One of the most significant provisions of the Indian Patents Act, 1970, provided that certain
requirements are met, is compulsory licensing. Any interested person may, under the following
criteria, apply to the Patent Controller for the issuing of a compulsory patent license at any time
following the passing of three years from the date of the sealing of a patent. A voluntary license is
granted by a person to use any good. Possessing a voluntary license is the first step. There are three
justifications for requesting the mandatory license. After three years from the day the patent was
granted, the license may be requested at any time. Anyone may request a compulsory license.
Whether it be a real person, a fake person, or a business.
Grounds for granting compulsory licensing

 There must be a justifiable demand.

 The item must not legitimately be in the public domain.
 The patented invention is not being used on Indian soil.
If one nation produces the COVID 19 vaccine, the other nations will receive the identical vaccine.
The WHO and TRIPS have public health on their agenda. The government has issued a regulation
stating that the vaccine production procedure must be granted as a country’s mandatory license for
other countries. PPP is a relative concern in this situation and represents the triangle of public health,
patent, and pandemic. The controller’s authority concerning the mandatory license is discussed
in Section 88. The controller must look at the nature of the invention and determine whether it has the
ability to file an application.

Rights of Patentee

 Right to exploit patent: A patentee has the exclusive right to make use, exercise, sell or
distribute the patented article or substance in India, or to use or exercise the method or
process if the patent is for a person. This right can be exercised either by the patentee
himself or by his agent or licensees. The patentee’s rights are exercisable only during the
term of the patent.
 Right to grant license: The patentee has the discretion to transfer rights or grant licenses or
enter into some other arrangement for a consideration. A license or an assignment must be
in writing and registered with the Controller of Patents, for it to be legitimate and valid.
The document assigning a patent is not admitted as evidence of title of any person to a
patent unless registered and this is applicable to assignee not to the assignor.
 Right to Surrender: A patentee has the right to surrender his patent, but before accepting
the offer of surrender, a notice of surrender is given to persons whose name is entered in
the register as having an interest in the patent and their objections, if any, considered. The
application for surrender is also published in the Official Gazette to enable interested
persons to oppose.
 Right to sue for infringement: The patentee has a right to institute proceedings for
infringement of the patent in a District Court having jurisdiction to try the suit.

Obligations of patentee

 Government use of patents: A patented invention may be used or even acquired by the
Government, for its use only; it is to be understood that the Government may also restrict
or prohibit the usage of the patent under specific circumstances. In case of a patent in
respect of any medicine or drug, it may be imported by the Government for its own use or
for distribution in any dispensary, hospital or other medical institution run by or on behalf
of the Government. The aforesaid use can be made without the consent of the patentee or
payment of any royalties. Apart from this, the Government may also sell the article
manufactured by patented process on royalties or may also require a patent on paying
suitable compensation.
 Compulsory licenses: If the patent is not worked satisfactorily to meet the reasonable
requirements of the public, at a reasonable price, the Controller may grant compulsory
 licenses to any applicant to work the patent. A compulsory license is a provision under the
Indian Patent Act which grants power to the Government to mandate a generic drug maker
to manufacture inexpensive medicine in public interest even as a patent in the product is
valid. Compulsory licenses may also be obtained in respect of related patents where one
patent cannot be worked without using the related patent.
 Revocation of patent: A patent may be revoked in cases where there has been no work or
unsatisfactory result to the demand of the public in respect of the patented invention.
 Invention for defence purposes: Such patents may be subject to certain secrecy provisions,
i.e. publication of the Invention may be restricted or prohibited by directions of Controller.
Upon continuance of such order or prohibition of publication or communication of
patented Invention, the application is debarred for using it, and the Central Government
might use it on payment of royalties to the applicant.
 Restored Patents: Once lapsed, a patent may be restored, provided that few limitations are
imposed on the right of the patentee. When the infringement was made between the period
of the date of infringement and the date of the advertisement of the application for
reinstatement, the patent has no authority to take action for infringement.