PATENT is a prerogative granted to the inventor for its invention to prevent others from practicing the patented innovation for a certain length of time in return for releasing the invention’s specifics to the public. It is a monopoly granted by the government in lieu of the public revelation of an idea/invention. A patent is granted to the inventor if its invention is novel, non-obvious, and beneficial in a bonafide manner. The patent has a validity of 20 years, which commences on the day the patent application is made. A patent is a territorial right; it can only be obtained in the nation where the inventor intends to use it, and infringement actions may only be initiated in that country. The patent can also be obtained for further development of their previous innovation. Any useful, novel and non-obvious procedure, machine, the manufactured object, chemical composition, or improvement of any of the foregoing can be patented. Business procedures and software can also get a patent licenses, but natural laws and scientific theories cannot. A patent may also be secured for the invention of an object or a manufacturing method.
BRIEF HISTORY OF THE PATENT:
It is believed that there was some form of patent rights recognized in Ancient Greece that can be traced back to 500 BCE. Filippo Brunelleschi, an architect, and engineer earned the first known patent for an industrial invention in 1421 in Florence. The patent granted him a three-year monopoly on the construction of a marble-transporting barge with hoisting gear.
OUR PATENT LAWYERS AT THE LAW CODES:
In sector-specific projects, our best patent lawyers in Gurgaon – NCR employ domain understanding of patent laws by applying industry-driven acumen and profound technical wisdom of diverse firms. Our extensive expertise litigating in a range of settings helps defend our clients’ patent, safeguard the brand’s value, and achieve precedent-setting victories in a variety of conflicts. Our clients are well aware of our achievements in the most difficult and high-profile Patent cases before various forums. Based on our expertise securing Patent triumphs at the Registrar Office and appeals before various forums such as High Courts and the Hon’ble Supreme Court, we present a novel and successful strategy to the fast-paced Patent proceedings and litigation.
Our Top patent lawyers in Gurgaon – NCR at The Law Codes manage a wide range of concerns, including cutting-edge pharmaceutical industry and technology, as well as trade secrets that challenge and revolutionize industries. We may construct our teams to match our specific competencies with each client’s individual needs, regardless of the patent in question. We can handle any combination of IP and related competition, contract, and unfair business practices allegations.
TECHNOLOGY & PATENT:
The application for a patent must be true, and the right to apply for a patent must be assignable to the first inventor or the person who has received the title from him. In India, the Patents Act,1970 governs all patent-related legislation, and after being amended by the Patents (Amendment) Act, 2005, the patent has been expanded to all domains of technology, including food, pharmaceuticals, chemicals, and microorganisms. A patent gives the owner the right to use their invention without fear of competition from others. They can either use the patent themselves by manufacturing the patented items, or they can license the idea to others. The owner has the right to sue anybody who uses the patented idea without a license. If an infringement is successfully prosecuted, they may be barred from further action and required to pay damages and costs. If the investor intends to get his innovation patented in more than one country, the inventor may file an International Patent Application under The Patent Cooperation Treaty (PCT) in which allows a patent to be submitted in a large number of countries using a single patent application.
It is important for patent lawyers in Gurgaon – NCR to understand the science behind a patent and it is only after understanding the processes of patent, a patent lawyer in Gurgaon – NCR can litigate in the domain of patent. According to territorial jurisdiction, there are four patent offices in India where a patent application can be filed: Chennai (in southern India), Delhi (in northern India), Kolkata (in eastern India), and Mumbai (in western India).
PROCEDURE TO APPLY PATENT APPLICATION IN INDIA:
It is important for patent lawyers in Gurgaon – NCR to understand how a patent is applied in India. Upon the filing of the patent application, a request for examination must be made at the Indian Patent Office within 48 months of the date of priority of the application or the date of filing of the application. Once the examination report is issued by the patent office, the applicant is given the chance to respond to the objections mentioned in the report. The applicant is required to make all the changes as directed by the patent office to its patent application with reasonable clarifications within 6 months from the issuing of the examination report, which may be extended for 3 months at the applicant’s request. If the conditions of the examination report are not fulfilled within the statutory time frame of nine months, the applicant’s application is marked abandoned. After all, objections have been resolved and all conditions have been met, the patent is awarded and published in the Patent Office Journal.
WHAT IS PATENTABLE UNDER PATENT ACT, 1970:
Sections 3 and 4 of the Indian Patents Act, 1970, specifically stated the limitations on what will be protected in India. There are certain conditions that must be met in order to receive a patent in India and these conditions are as follows:
- PATENT SUBJECT: The most essential aspect to examine is whether the invention coincides with the patentable subject matter. The non-patentable subject matter is listed in Sections 3 and 4 of the Patents Act. Except if the Invention falls under either of the requirements of Section 3 or 4, it is a patentable subject.
- NOVELTY: No invention or technique published in any document before the date of filing of a patent application, anywhere in the country or the world, according to Section 2(l) of the Patent Act.. Indeed, the novelty principle specifies that an invention should not be disclosed into the public domain. It must be the most latest, with no preceding artworks that are the same or comparable.
- INVENTIVE STEPS OR NON-CLARITY: An innovative step is defined as “the characteristic of an invention that incorporates scientific development or is of economic importance or both, as contrasted to existing knowledge, and invention not obvious to a person versed in the art” under Section 2(ja) of the Patents Act. This indicates that the innovation need not be evident to someone competent in the same field as the invention. It should not be innovative or obvious to someone with competence in the same area.
- CAPABLE OF INDUSTRIAL APPLICATION: Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the invention is capable of being made or used in an industry”. It must be applicable in any industry, which implies it must have practical use in terms of patent.
GROUNDS FOR OPPOSITION for PATENT LAWYERS IN Gurgaon – NCR:
A prior grant or a subsequent grant by any person on the grounds listed in sections 25 (1) and 25 (2) of the old Act may be used to oppose a patent application. There are no further reasons specified in the Act for opposing the patent. The grounds for opposition are as under:
- The invention had already been published or claimed in India or abroad;
- The production of a part of past public knowledge, prior public usage, or traditional knowledge of any community is an invention;
- The invention is self-evident and lacks a creative step;
- The innovation does not meet the definition of an invention under the Act, or it is not patentable under the Act;
- Failure to disclose information or supplying false information about a foreign nation by the applicant.
- The Patents Act,1970 (Act No.39 of 1970);
- The Patents (Amendment) Act – (No.17 of 1999);
- The Patents (Amendment) Act, 2002 (No. 38 of2002);
- The Patents (Amendment) Act 2005 (No. 15 of 2005);
- The Patents Act, 1970 (incorporating all amendments till 23-06-2017).
- The Patents Rules, 2003 (incorporating all amendments till 01-12-2017)
Patent infringement is defined as the unlawful use, manufacture, sale, or offer to sell invention/idea of someone else’s patent. Patents are classified into several sorts, including utility patents, design patents, and plant patents. The main concept behind patent infringement is that unauthorized parties are not permitted to utilize patents without the approval of the owner.
When a court finds patent infringement, it generally compares the topic/area of interest covered by the patent to the previously existing subject matter utilised by the “infringer”, and infringement occurs when the infringer utilises the subject matter protected by the patent. Any unauthorised manufacture, sale, or use of a patented invention constitutes patent infringement in its most basic form.
PATENT INFRINGEMENT OCCURS EITHER DIRECTLY OR INDIRECTLY:
- Direct Infringement: The most common sort of infringement is direct infringement, in which the Invention that infringes patent claims is directly identified, or the Invention performs essentially the same purpose.
- Indirect Infringement: Indirect Infringement are of two forms:-
- a) Persuasion-based infringement is defined as any conduct by a third party that convinces another person to directly violate the patent. Selling components that can only be used properly for a patented innovation, selling an invention with directions to use in a certain technique that infringes on a method patent, or licensing an invention that is covered by another person’s patent are all examples of this. The inducer must aid deliberate infringement, although intent to infringe on the patent is not required.
- b) Contributory infringement occurs when material components generated for use in a patented invention and having no other development are sold. There is a lot of overlap with indicators, but contributory breaches take a long time. Seller offenses must demonstrate direct intent to infringe. For there to be an obligation for indirect violations, a direct violation must also be an oblique behavior.
FEW IMPORTANT PRINCIPLES FOR PATENT LAWYERS:
It is essential for the patent lawyers in Gurgaon – NCR to have a solid basis in the patent litigation by understanding doctrines, principles, and concepts. The following ideas can help us better understand the fundamentals of patent law.
- DOCTRINE OF EQUIVALENT: When the exclusive rights of the patent holder are breached, this is referred to as patent infringement. Infringement happens when a person uses a patent holder’s exclusive rights without the patent owner’s approval or license. Sections 104 to 114 of the Indian Patent Act of 1970 define patent infringement. Under the principle of equivalents, a claim may be infringed if it fulfills the “triple test”, which asserts that equivalence occurs when the replacement components perform substantially the same function in substantially the same way to produce the same result.
The criteria used to define equivalent in the doctrine of equivalents:
- HYPOTHETICAL CLAIM: One method via which an adjudicating authority evaluates the equivalents is the hypothetical claim. The hypothetical claim is used to assess whether or not an existing patent has been infringed. The hypothetical claim clearly refers to infringement by replicating prior art of the claimed invention. The prior art of the original idea is recreated in such a way that the consumer believes the copied product performs the same function as the original.
- THE ‘ALL ELEMENTS’ TEST: The All Elements test clearly shows that the Doctrine of Equivalent should be applied to all individual claim elements rather than the claimed invention as a whole. According to this test, it is necessary to show that every aspect of the claimed invention is present in the accused’s goods. Such aspects in the accused’s product must be significant equivalents to the original product. This suggests that these products must pass the triple identity test. Furthermore, equivalency should be considered only after a claim has been filed. The same criterion should not be used when a product has been patented.
- THE TRIPLE IDENTITY TEST: Even if two devices perform the same function in the same way and provide the same outcome, they are considered the same even if their shape, size, and form differ. There are various factors that contribute to long-term viability. They are discussed in further detail below:
- If a skilled practitioner of the art might have identified such an equal;
- Whether an accused person intended to duplicate or just designed around and inadvertently obtained the same results;
- If those skilled in the art are aware of the comparability between the claimed and alleged advances.
- Another crucial consideration should be addressed in this situation. Infringement would arise if there is equivalence between the accused product’s processor elements and the claimed elements of the patented invention. This is true even if there is no violation of the particular language of the patented claim.
- DOCTRINE OF COLOURABLE VARIATION: When an infringer makes slight modifications to a technique or product while keeping the fundamental aspects of the patentee’s innovation, this is referred to as a colorable variation or immaterial variation amounting to infringement. It refers to a minor change or modification made to an invention, and such change is done solely to separate an invention or work from an existing patent.
Understanding Remedies of Infringement for Patent Lawyers:
Litigation for infringement can result in significantly greater losses than other types of claims. Certain legislation, such as the Patent Act, allows plaintiffs to seek monetary compensation and it is important for patent lawyers to have a holistic overview of the Patent Act to get the desired result in the litigation. Infringement of a patent is described as the unlawful manufacture or use of an innovation or improvement of someone else’s invention or subject matter by someone who has a government-issued patent without the owner’s agreement, either by consent, licence, or waiver. In the event of an infringement, patent owners have a number of choices. Potential remedies in a patent infringement case may include monetary compensation, equal relief and costs, and attorneys’ fees.
Monetary Remedy: Monetary remedy in the form of compensating damages is possible to avoid patent infringement:
- Indemnity compensation: When establishing the patent’s worth, a patent owner may have lost revenue owing to infringement;
- Increased Damages: Compensation costs can be levied up to three times in cases of will or breach of will;
- Damages can be claimed just six years after the patent was issued and only six years before the infringement action is filed.
Equitable remedies: The lawsuits that prohibit parties from engaging in specific actions. The patent lawyers in Gurgaon – NCR shall avail all equitable remedies well within time Orders granted by the court to prevent a person from doing anything or acting are known as equitable relief. Injunctions are of two types:
- Preliminary Injunction: Orders issued in the early stages of a lawsuit or litigation that prohibit parties from performing disputed conduct;
- Permanent Injunction: A court’s final ruling that permanently suspends specific acts or takes numerous additional steps.
OFFENCES AND PENALITIES UNDER PATENT ACT:
SECTION 118: Breach of some innovations’ secrecy rules;
SECTION 119: Falsification of register entries;
SECTION 120: Unauthorized claim of “patent office”;
SECTION 122: Failure or refusal to provide information;
SECTION 123: Patent Agents Who Aren’t Registered;
OFFENSES BY COMPANIES (SECTION 124).
SIGNIFICANT JUDGEMENTS FOR PATENT LAWYERS:
- Bajaj Auto Limited vs. TVS Motor Company Limited, (2009) 9 SCC 797 (Supreme Court);
- Novartis vs. Union of India, (2013) 6 SCC 1, (Supreme Court);
- Hoffmann-La Roche Ltd vs. Cipla Ltd., [RFA (OS) 92/2012 AND RFA (OS) 103/2012] (Delhi High Court);
- Dr Snehlata C. Gupte vs. Union of India & Ors (W.P. (C) No 3516 and 3517 of 2007) (Delhi High Court);
- Bayer Corporation vs. Union Of India, 2014 (60) PTC 277 (Bom);
- Dr. Cluadio De Simone & Anr. vs. Actial Farmaceutica SRL. & Ors.CS(OS) 576/2019 (Delhi High Court);
- Monsanto Holdings Pvt. Ltd. & Ors. v. Competition Commission of India, P.(C) 1776/2016 (Delhi High Court);
- Arudra Engineers Pvt. Ltd. v. Pathanjali Ayurved Ltd. & Anr.S.A. No. 169 of 2020 (Madras High Court).
INTERNATIONAL CONEVNTIONS, TREATIES, ORGANISATIONS & WIPO:
- WIPO Convention;
- Paris Convention;
- Berne Convention;
- Patent Law Treaty;
- Patent Cooperation Treaty;
- Budapest Treaty;
- Strasbourg Agreement concerning the International Patent Classification.
WIPO (WORLD INTERNATIONAL INTELLECTUAL PROPERTY ORGANIZATION) is a global platform for intellectual property (IP) services, policy, information, and collaboration. WIPO is a United Nations self-funding entity with 193 member nations. WIPO’s objective is to support the development of a fair and effective international intellectual property system that encourages innovation and creativity for the common good. WIPO’s mandate, governing bodies, and procedures are all outlined in the WIPO convention, which was signed in 1967.