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.