& patent infringement

& patent infringement
A patent confers the exclusive right to the patentee to make, distribute or sell the invention in India. A violation would be if one of the three rights is violated. A patent holder may license all or some of these rights. exercise of the rights, so that for the purchaser or the licensee of the assignor or the licensor is not a violation of the patents.

In the case of a product patent rights of patent holders are violated by any of this material commercially or supplies. In the case of a process patent, the use of such a method, or in India by a person other than the patent holder for the violation amounts.

Regardless of whether the act of a person other than the patent holder for the violation amounts or not would depend on:

(i) The scope of the monopoly rights conferred by the patent, which interprets the specification and claims, the application of the patent holder. Any measure which does not fall within the scope of the claims not to breach.

(ii) whether he is opposed to the monopoly rights of patent holders to make or sell is.

What about the violation

(1) The colourable imitation. An invention.

(2) Slight variations in the invention.

(3) Mechanical method.

(4) The essential features of the invention.

All of the above actions often overlap each other, if a breach of a patent or a process taking place.

A colorable variation or immaterial variation in the amount of injury is when an infringer, the slight change in the process or product, but in fact is essentially the main features of the invention, the patent holder.

Injury caused by mechanical processes may occur, if it uses only a substitute for these functions to the same result for the same purpose as by the patent holder.

Action of the violation

If the monopoly of the patent holders' rights are being violated his rights secured again by the Act on judicial intervention. The patent holder has proposed the creation of an action for infringement. The exemption is granted in such a suit are --

(1) Interlocutory decisions / injunction.

(2) damages or profits.

(3) Permanent disposal.

If a suit is initiated

Section 104 of the Act provides that an action for infringement is not supported in a court inferior to a District Court has jurisdiction to try the suit. In appropriate cases, where the High Court has jurisdiction to change the color. The suit is in the High Court if an action for infringement has been initiated in a District Court and the defendants in a claim against the revocation of the patent, the suit is addressed to the High Court for decision, because the High Court has competence to try cases of withdrawal. Section 104A provides for proof in case of complaints about the violation.

The procedure for the implementation of an action for infringement is determined by the provisions of the Code of Civil Procedure.

If a suit can be initiated

A suit for infringement can be initiated only after the patent was sealed. If a specification has been adopted and published, ie, during the period in which opposition has been requested and decided, the plaintiffs can not, a suit for infringement, but damages caused by the violation, during the period, ie between the time of Publication of the full adoption of the specification and the date of grant may be claimed in another suit, a separate claim for damages, but not fit for infringement.

If the term of the patent has expired and the violation during the term of the patent, an action may be initiated during the period even after the expiration of the legislature.

In the case of a patent and that was subsequently restored, between the date on which the patent is no longer effective, and the date of publication of the application for restoration.

If a patent has been acquired unlawfully by a person and later on the true and first inventor, no action for infringement can be initiated for the violations before the period of the grant to the true and first inventor.

The plaintiff (person who made a complaint, ie, institutes a suit) is not required to provide notice to the defendant (infringer) before initiating an action. Court is an indication.

Limitation

The period of limitation for the introduction of an action for patent infringement is three years from the date of injury.

Who is entitled to Sue

Only the person who has the right to the patent may institute an action for infringement. The following persons are entitled to Sue: --

(1) The patent holder.

(2) The exclusive licensee if the license is registered.

(3) A compulsory license if the patentee refuses or neglects to carry out a procedure.

(4) A licensee other than the two above-mentioned licensee may bring an action for breach of the terms of the contract between the licensor and licensee.

(5) Assignee, he can sue only after the declaration, the assignment in his favor has been filed. When a patent is granted after the beginning of action, the assignee will act as co-plaintiff. An assignee can not sue for infringement, which is prior to the assignment.

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