What is Patent Infringement?

By: Senthil Kumar Posted: Jul 14th, 2009

we need to understand whether patent infringement has occurred or not, and in order to verify the infringement it is necessary to determine the scope of protection of the patented invention, basically from the patent specification and patent claims. Thereafter, it is important to study the interpretation of the wording ("literal infringement"), which is the basic rule of patent infringement. What is meant by literal infringement? Literal infringement is nothing but when all the elements in the infringing product are present in the claimed product. Sometimes, assessing literal infringement only would not establish the grounds of patent infringement. Even though some elements may not be literally infringing, we will have to study whether the elements are “performing substantially the same function, in substantially the same way, and accomplish the same result”. This step is referred to as, the “doctrine of equivalence”. The above analysis can be performed with the help of patent attorneys/patent lawyer, who has the techno-legal background.

Do you know who is liable for patent infringement? Your answer may be the actual manufacturer of infringing product, but also the users of the patented invention or others who are indirectly connected with such infringing activity, are liable for infringement.

There are various ways of establishing patent infringement and a suit for infringement must be instituted within 3 years from the date on which the plaintiff first knew the infringement (Under Section 88). The plaintiff can be i) the patentee, i.e., the person registered in the Register of Patents as the grantee or proprietor of the patent, or ii) t he holder of an exclusive license provided the license is registered, or iii) The holder of a compulsory license; in the event the patentee fails to institute proceedings on the request of the compulsory license holder, or iv) an assignee of a patent provided an application for registration of assignment has been filed before the date of filing the suit; or v) a co-owner of a patent is not expressly entitled in the Act to bring an action for infringement on his own without joining the others.

Now, the question of interest would be whether a third party would be liable for an infringement if the patent has lapsed. The answer is not liable for an infringement. The immunity is from the date on which the patent has lapsed till the application for restoration, if filed, is advertised in the official gazette. In case the patentee has not cared to restore his patent within the prescribed period, the patent lapses and the invention would become the public domain.

In case any person receives notice of infringement, the person should take the following necessary steps: i) first find out the patent number of the invention from the person who sent the notice; ii) check the patent is in force or not from the patent office; iii) check if the person who sent the notice is the registered proprietor of the patent; iv) in case the above steps are positive, procure a copy of the specification from the patent office and study it in detail, and v) if the patentee (the person who sent the notice) has a good case, the person should either drop the working of that invention or attempt at procuring a license from the patentee.

Finally, I would like to point out that the patented invention can be used for research purposes without any liability for infringement.

Get ready to eat Patented Biryani; It’s ‘Incredible India’

By: R.S. Praveen Raj Posted: Jun 23rd, 2009
Be prepared to hold your excitement next time you walk in to your favourite restaurant to order a "Hyderabadi Biryani". It's quite likely that the waiter may ask you a question "Sir/Madam, Would you like to have the patented biryani or generic biryani". Hopefully, you may not get stunned as you are familiar with "patented drugs" and “generic drugs”. I came to know from a journalist friend that some Biryani Maker Association from Hyderabad is about to apply for GI registration for "Hyderabadi Biryani", taking inspiration from Mr. V Natarajan, then Assistant registrar of GI (Chennai), who told in June 2008 that "Somebody should also file a GI for Hyderabadi biryani and pearls" . It will be a cake walk for the Biryani Maker Association if the present assistant registrar Mr. G.L. Verma also has the same opinion in this respect. I will have no surprise if some BIRYANI also is granted IPR in country, which allowed patenting of deity and Temple Offering (Tiruppathi Laddu).
However, as a Scientist working in the area of Intellectual Property Rights, it's my moral responsibility too to have a look at the provisions of Geographical Indication of Goods (Registration and Protection) Act, 1999 that reflects in its statute title itself that it is meant for the registration of GOODS only.

1) What is meant by "Goods" in GI Act as per Section 2(1)(f) under Definitions and Interpretations ?

"goods" means any agricultural, natural or manufactured goods or any goods of handicraft or of industry and includes food stuff.
No doubt that "Food stuff" also will be covered by the definition of "GOODS"; but only if such Food stuff is any of the following
a) Agricultural Goods
b) Natural Goods
c) Manufactured Goods
d) Any Goods of Handicraft
e) Any Goods of Industry

To the best of my understanding, HYDERABADI BIRYANI cannot be considered as a manufactured goods, or a product of Handicraft (or Industry). This is also true in the case of "TIRUPPATHI LADDU"

2) What is meant by "Geographical Indication" GI Act as per Section 2(1)(e) under Definitions and Interpretations ?

"geographical indication", in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality, as the case may be.
Now the questions which arise are
a) Whether the quality, reputation or other characteristic of HYDERABADI BIRYANI is essentially attributable to HYDERABAD, such that the common man prefers to eat HYDERABAD BIRYANI manufactured in HYDERABAD alone", whenever He/She is Offered to buy it.

You may compare the case of "KANCHIPURAM SILK" with that of "Hyderabadi Biryani"

b) Is it that the given quality, reputation etc. of HYDERABADI BIRYANI would be served, only if it is originating, or manufactured from HYDERABAD. Will the consumer feel cheated after eating HYDERABADI BIRYANI, if he comes to know later that it was not "MANUFACTURED" in HYDERABAD ?
You may compare the case of "Nagpur Orange" with that of "Hyderabadi Biryani"
c) Can anybody show a factory or industrial production site, where HYDERABADI BIRIYANI is manufactured as one of the activities of either the production or of processing or preparation of this "goods"

That is why GI on "Darjiling Tea" is correct, but a GI on "Tiruppathi laddu" and GI on "Hyderabadi Biryani" are wrong

3) These people are aiming at "MONOPOLY" (Very dangerous for this Country)
Section 21 (1) of GI Act says
Rights conferred by registration.-(1) Subject to the other provisions of this Act, the registration of a geographical indication shall, if valid, give,

(a) to the registered proprietor of the geographical indication and the authorised user or users thereof the right to obtain relief in respect of infringement of the geographical indication in the manner provided by this Act;
(b) to the authorised user thereof the exclusive right to the use of the geographical indication in relation to the goods in respect of which the geographical indication is registered.
THIS IS INCREDIBLE INDIA

LPO Express may face a Halt due to Lack of Talent Supply

By: Cooper
The LPO industry is still very nascent, but it has already seen a tremendous growth in a short period of time. According to the experts, the LPO industry is expected to experience exponential growth in the coming years. While there remain a number of positives in favor of India backing this growth, there are also some considerable challenges as well. One of them is lesser interest of the young Law graduates in the LPO industry which may deprive the LPO industry from gaining its estimated momentum.
Even though about 80,000 Lawyers graduate every year in India, but the number of them considering LPO as a career option remain very low. This is even more surprising, considering when about 45% of the Lawyers graduating feel that LPO industry pays better remuneration than the old stereotype Law jobs in a Law firm. However, one of the significant reasons for the Lawyers not considering the LPO option remains lack of awareness. This is despite the fact that LPO remained most eminent subject of debate in the media, particularly in times of economic crisis. Further, many students believe that LPO industry offers tasks that are rather repetitive in nature and could made them loose their legal knowledge and other competencies. Many students also think of it as just another form of BPO entity, where they might be required to do a monotonous job which requires no skills or domain knowledge. Clearly, there seems to be a great barrier of perception in minds of these young Lawyers speculating a career in the LPO industry.
However, with the Indian LPO vendors expanding their operations in various geographies and many UK and US law firms enhancing their capabilities in India, there seems to be a lack of talent supply in comparison to this increasing demand. Many experts believe that this dearth in talent supply could be one of the potential obstructions in stopping India from grabbing its estimated 75% share in the legal outsourcing services market. Further, other emerging destinations such as South Africa and Ireland are also expected to give India a stiff competition.
In light of such scenario, one of the significant challenges for the Indian LPO industry remains is to attract this much needed manpower. For this, they need to overcome the current perception which these Law graduates hold about the LPO industry. This requires greater interaction by the LPO vendors with their prospects to increase their awareness about the potential career in the LPO industry.

Is Declaring Bankruptcy Right For You?

By: audrey Posted: Jun 22nd, 2009
It is unfortunate, but good hardworking people sometimes fall behind on their bills due to unforeseen circumstances like divorce, illness, loss of employment, or various other reasons outside of their control.
If you’re in financial distress, you’re probably confused and worried about what steps you can take to quickly put your life back on track. You’ve probably been asking: What should I do? Should I tell my friends and family? How do I protect my assets? What are my options? Do I need a bankruptcy lawyer?Don’t be misinformed about your rights as a consumer. There are many options for you. But beware – there are many companies that are just looking to make a quick buck. Do your research, ask about free consultations with debt consolidation companies and local attorneys. Consulting an attorney is important before making and decisions. They can explain the pros and cons of filing and can walk you through the process.Before filing for a bankruptcy it is important that you know what is involved. Bankruptcy can stay on your credit report for up to 10 years which can make it difficult for you to get a loan, a new car, or buy a home. But, what sets bankruptcy apart from the other debt solutions is the potential to get rid of 100% of your debt. There's no risk of losing your belongings, and creditors cannot harass you.Make sure you weigh the pros and cons, and don’t feel ashamed or embarrassed. These days, there are many options available, and many people in similar situations. It’s never too late; there is a light at the end of the tunnel.

H-1B Visas For FY 2008

By: kate raynor Posted: Jun 21st, 2009
The cap for FY 2007 was reached on May 26, 2006, well before the fiscal year began on October 1, 2006. Because the H-1B Visas are limited, a lot of employers are already preparing thousands of petitions for immediate filing in April. Accordingly, we advise all employers to file H-1B visa petitions for prospective employees on April 1, 2007, or immediately thereafter as the cap is anticipated to close early again.
The maximum allotted visas authorized by Congress are 65,000 new H-1B visas per fiscal year with some exceptions. The first 20,000 H-1B visas issued to alien workers who obtained their master's degree here in the U.S. are exempt from the 65,000 cap; H-1B visas issued to such individuals subsequent to the first 20,000 are then counted against the overall 65,000 cap. Some U.S. Senators have proposed increasing the cap, but such legislation is yet to be passed by Congress. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual limit.
Employers should also consider that the foreign national who they intend to employ must be in lawful non-immigrant status which must be valid until October 1, 2007 which is the affectivity date of that approved H-1B Visa. Should the foreign national not meet this requirement, for example a person in B-2 or Tourist visa may elect to have his/her B-2 tourist visa extended so that they may bridge the gap between the time their authorized stay (I-94) expires until October 1, 2007. If extending the B-2 tourist visa is not an option, the foreign national may then leave the U.S. and return to their home country before their authorized stay (I-94) visa expires and obtain their H-1B visa at the U.S. Embassy in their home country.
H-1B visas are only issued to foreign nationals employed in a "specialty occupation" or as a fashion model of distinguished merit and ability. The U.S. Immigration regulations states that a "specialty occupation" is an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor's degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include accountants, engineers, computer programmers, teachers, marketing analyst, etc. As part of the Labor Condition Attestation all H-1B workers must be paid the wages and benefits equal or greater than U.S. workers in the same type of profession or field so that it will not adversely affect the wages and labor conditions for U.S. Citizen workers.
H-1B workers are subject to a limitation of six years; upon completing six years' employment in H-1B status, they must depart the U.S. for one year before commencing new H-1B employment but there is a provision under the U.S. Immigration Law called the American Competitiveness in the 21st Century Act of 2000 ("AC21" ) which allows H-1B workers to extend their employment beyond six years if certain requirements are met. A new memorandum released by the USCIS also clarified that any time spent as an H-4 dependent will not count towards the six-year limitation in H-1B status. This memo also provided that a foreign national who was in the U.S. in valid H-1B status for less than the six-year maximum period of admission, but has since been outside the U.S. for more than one year can elect to either: (1) be re-admitted for the "remainder" of the initial six-year admission period without being subject to the H-1B cap if previously counted, or (2) seek to be admitted as a "new" H-1B alien subject to the H-1B cap.
Employers who intend to employ a foreign national on an H-1B visa for FY 2008 must begin the process now so that they may timely file the H-1B visa petitions on April 1, 2007, the date that filings for initial H-1B visas are accepted by the US Immigration Service. Since the H-1B visas has become more and more complex and filings timely is crucial , U.S. employers who intends to employ foreign workers on H-1B visas are advised to consult a knowledgeable and experienced Immigration Lawyer.

The Final Hearing: What To Expect

By: Lucille Uttermohlen Posted: Jun 16th, 2009
When you go to the final hearing, be on time. This won't guarantee that the judge will be prompt. The case before yours may run late. I have also shown up in many a courthouse only to find that the judge is treating him / herself to a luxuriously long lunch. However, if the judge does happen to start on time, and you are not there, you could miss important testimony, not to mention gets yelled at in the bargain. Of course, that's never happened to me.
The first person to present his / her case at the final hearing is the "petitioner", or person who asked for the divorce. His / her attorney calls witnesses, and asks them the questions he / she thinks they can best answer. Documents are also introduced into evidence, either by stipulation, or through the testimony of the people who prepared them. If the attorney believes that the questions asked by the other side are improper, or that a certain document should not be considered by the judge, he / she can object. If the judge agrees with the attorney, he / she will be "sustained". If the judge thinks the objection has no "merit" or is wrong, he / she will "overrule" it, and let the testimony or document be "admitted into evidence" which means it is something the judge will consider in making his / her decision.
As the petitioner finishes questioning each of his / her witnesses, the respondent has an opportunity to "cross examine" them. This means that he / she can ask any questions he / she has about what they said, or what documents they presented. The questions the respondent can ask are limited to the subjects covered by the petitioner in his / her questions. If the respondent wants the witness to testify about something the petitioner didn't cover, he / she must wait for his / her own case, and call the witness to testify for him / her.
When the petitioner rests, it is the respondent's turn to produce witnesses and documents to support his / her side of the case. The petitioner then has a chance to cross-examine the respondent's witnesses. When the respondent is done, the petitioner can present "rebuttal" evidence, which gives him / her the chance to address anything he / she overlooked in his case. He / she can only cover new things that the respondent brought out. He / she can't add new things to his / her original case.
If the Petitioner introduces new things about the respondent's case and the respondent feels he / she needs to correct the judge's impression, then he / she can have "surrebuttal" and explain his / her side of the matter. Finally, the judge says a few words, sometimes under his / her breath, and unprintable, and the proceeding goes to the next stage.
A final argument is where the parties tell the judge what they think the evidence showed. The petitioner again goes first. The respondent says his / her piece, and the petitioner can rebut anything the respondent says with which he / she disagrees. Again, if the petitioner covers something that the respondent thinks is wrong, he / she can set the court straight.
Sometimes, the attorneys waive final argument. At times, this is because the hearing took so long that the lawyers are simply out of gas. Other times, the glazed look in the judge's eyes is a cue that further speechifying wouldn't be welcome. Sometimes, the judge would prefer that they write out there opinions and site the cases that they think backs them up. Finally, the parties wait for the judge to make a ruling. In busy courts, this part can take months.

PATENT FILING REQUIREMENTS IN INDIA

By: Sudhir Kumar Posted: Jun 16th, 2009
To minimize the cost of Patent filing and prosecution in India, there are number of things an attorney should take in to account.
In the event you are filing a PCT national phase application, provide your associate in India following information:
(i) Application details including title of the invention, names, addresses and Nationality of the inventors; applicants.
(ii) Complete specification as filed before the International office with claims, drawings and abstract.
(iii) English translation of the International Application if filed and published in language other than English.
(iv) Certified copy of the priority document/s if Form PCT/IB/304 is not available
(v) English translation of the priority documents, if filed and published in language other than English
Priority documents are to be filed in India within 31 months from date of priority, therefore if Form PCT/IB/304 is not available, provide your associate the certified copy of priority documents along with your instruction, so that all documentation can be completed on time.
Where the International application or the priority application are in language other than English, provide an English translation of the same to your associate.
Demand from your associate that power of authority as well as other formal documents be sent to you for execution.
The following requirements can be complied within 6 months from date of filing of the application, if your associate charges for late submission of documents these documents/information can be supplied along with the instructions to file the application.
- Where the Applicant is not the inventor, provide your associate with the Assignment deed or any other document by which the inventor/s have assigned their rights to the Applicant.
- Details and status of corresponding Applications in other countries for the same or substantially the same invention.
It will not only save the filing cost but also will minimize your prosecution cost as you would not be required to file petitions along with official fee for not complying with the formal requirements on time and seeking extension of time.
In India, the Patent rights accrues from the date of publication of application in India, it is therefore advisable to ensure speedy publication of the application. Ordinarily in case of the PCT national phase applications the statutory period of waiting till publication i.e. 18 months is already over, therefore the associate should be advised to expedite the publication by chasing the concerned authorities.
A Patent application in India is not examined unless a request for Examination is filed within 48 months from the date of priority. The ordinary time frame from filing of request to issuance of examination report is 18-24 months therefore it is also advisable to file the request for examination as soon as possible (not to wait for 48 months deadline) to expedite the grant in India.
The time frame for putting the application in order of Grant is 12 months from date of issuance of the examination report, but it is advisable to file the response and initiate the discussion with the examiner as soon as possible to avoid any last minute hassles.