A patent is an exclusive right given by the government to the owner of the invention or innovation. Basically, a Patent is issued to a person who has either-
- Invented some new product or some new process of doing something
- Made innovations in an existing product or in an existing process of doing something
A patent is infringed when someone uses or makes the patented invention without authorization from the owner.
Patent infringement can be classified into two classes:
- Direct infringement – this is the most common type of infringement. This type of infringement happens when someone commercially uses, sells or markets the patented invention without approval from the patent owner.
- Indirect infringement – this type of infringement happens when someone induces someone else to infringe the patent or when someone indirectly contributes in the infringing activites of someone else. For example, selling of infringed product.
Remedies in case of infringement
As per the Indian Patent Act, in case someone infringes the patent, the patent owner has the right to file a suit against the person infringing his patent. The suit for infringement can be filed in district court only. The case will be transferred to the high court only when the defendant files a counterclaim for the revocation of the patent.
Section 108 of the Indian Patents Act lays down the remedies that the patent owner has the right to in case of infringement. Those remedies are-
- Temporary/permanent injunction – The patent owner can get an injunction for the use of the patented invention. The temporary injunction is granted in the initial proceedings of the suit and the permanent injunction is granted once the case is decided.
- Damages or accounts of profits – the second remedy the patent owner gets is the damages for the loss that he suffered or profits that the defendant earned. The Patent owner is given choice between these two remedies. However, if the defendant proves that he was not aware that the patent exists at the time of infringement, then this remedy will not be granted to the patent owner.
- Seizure and destruction- The court can also order for seizure and destruction of the infringing goods and materials.
The limitation period for filing a suit for patent infringement is three years from the date of infringement.