Intellectual Property FAQ’s
Infringement is an act of making, using, selling, offering for sale or importing the invention which is called for in the claims of the patent by an unauthorized person. Generally, a claim of the patent is said to be LITERALLY infringed if every element of the claim is found in the accused device. Further, if a claim of the patent is NOT literally infringed but the accused device performs substantially the same function in substantially the same way to obtain the same result as that of the patented device, the claim is said to be infringed under DOCTRINE OF EQUIVALENCE.
Infringement analysis is conducted in order to determine whether a product or a process infringes upon an existing patent claim. In order to conduct an infringement analysis firstly the scope of the claim should be determined and then it should be checked whether all elements of the claim are present in the product or process. Infringement analysis must be done before launching a product or process in a particular Country. It may also be done for litigation proceedings.
In a patent infringement law suit the party being sued for infringement may take certain defenses to avoid being penalized by the Courts. The first line of defense is to claim that the activity of the respondent does not violate the patent rights of the complainant. This may be achieved by proper construction of the claims of the complainant’s patent and proving that the respondent’s activity is not covered under the claims scope. The next defense that a respondent can raise is by counterclaiming that the patent is invalid due to existing prior art. For this purpose relevant prior art may be cited to indicate that a patent should not have been granted to the complainant in the first place. In addition to the two aforementioned defenses the respondent may claim inequitable conduct on part of the complainant. Inequitable conduct, once proved, results in invalidation of the patent itself.nOther defenses include research exemptions, government use, parallel importation and so on.n