First Publication Date: 7th November 2009
 
An infringement case which has been in my radar for quiet sometime (for various reasons) is the one in which a company called Garaware has filed a patent infringement suit alleging that their patent rights have been violated by a company called Techfab.Garware has a granted patent that relate to gabions, and Garware alleges that Techfab is infringing their patent.
The details of the case can be found if you have access to Manupatra, or just try googling for details, and you might just get lucky!While there are various issues that I would like to analyze in this case, in this post however, I will restrict myself to analyzing (constructing) the claim by analyzing the manner in which it has been drafted.
I have been able to lay my hands on the claim of the patent IN195352 which is assigned to Garaware. From the document that I have, the patent appears to have only one claim:
IN195352 – Garaware vs Techfab
In my opinion, the claim appears to be worded is such a way that the claim becomes ambiguous. For example, in the claim, the line “made from ropes of any synthetic material” in which the word “any” makes it difficult to understand the scope of the word. Further, inclusion of examples (such as polypropylene or high-density polyethylene or polyester) and optional features in the claim, according to me, makes the claim unclear. Hence, in my opinion, the claim may not be in accordance with section 10(5) of the Indian Patent Act which is recited below:
“The claim or claims of a complete specification shall relate to a single invention, shall be clear and succinct and shall be fairly based on the matter disclosed in the specification and shall, in the case of an invention such as is referred to in section 5, relate to a single method or process of manufacture.”
Further, most independent claims that I have drafted or come across, as a good practice (derived from patent act and rules) are drafted to include only the essential and novel features of the invention. However, this independent claim, to my surprise, appears to include essential, novel and optional features of the invention.Further, in this case, I believe it is important for us to understand which elements/features of the claim are optional because if one has to validate (or invalidate) the claim, he may have to find out whether or not, prior art teaches the essential (the novel feature(s) will be among the essential feature) features/elements of the claim.
Let me first list down the elements/features of the claim, and then try to decide which elements/features are essential and novel, and which ones are optional.Here is the list:
  1. Gabion is made from ropes
  2. The ropes can be of any synthetic material such as polypropylene or high-density polyethylene or polyester or a suitable combination of these materials
  3. Horizontal and vertical chords of ropes are weaved
  4. The ropes are weaved in a continuous mesh of definite geometric pattern to form a basket or container of definite geometric shape
  5. The geometric pattern can be circular, square or rectangular
  6. The weaved ropes which define a definite geometric pattern also define apertures of desired size
  7. The container or basket has internal baffles or partitions
  8. The container or basket doesn’t have internal baffles or partitions
  9. The container has flip open top lid to facilitate filling of the gabion
  10. The gabion has inbuilt hangs to accommodate lifting hooks or shackles of a crane for lifting the filled gabion
  11. The gabion does not have inbuilt hangs
I looked at the way the claim has been worded to understand which features/elements are included in such a way that even without the inclusion of that feature the invention will work. According to me the following features/elements of the claim are optional:
  1. The container or basket has internal baffles or partitions
  2. The container or basket doesn’t have internal baffles or partitions
  3. The gabion has inbuilt hangs to accommodate lifting hooks or shackles of a crane for lifting the filled gabion
  4. The gabion does not have inbuilt hangs
The reason being the following lines in the claim:
“having or without having internal baffles or partitions…with or without in-built hangs to accommodate…”
The above lines are self explanatory. Having baffles and in-built hangs appear to be purely optional, and hence in my opinion are definitely not “essential” for the invention, and neither are they the “novel” elements/features of the invention.
Hence, according to me, the below listed features are the essential features of the invention and the novel feature(s) (if any) will be among the essential features. Therefore, in my opinion, if prior art teaches a gabion having the below listed features/elements then the claim may not be valid:
  1. Gabion is made from ropes
  2. The ropes can be of any synthetic material such as polypropylene or high-density polyethylene or polyester or a suitable combination of these materials
  3. Horizontal and vertical chords of ropes are weaved
  4. The ropes are weaved in a continuous mesh of definite geometric pattern to form a basket or container of definite geometric shape
  5. The geometric pattern can be circular, square or rectangular
  6. The weaved ropes which define a definite geometric pattern also define apertures of desired size
  7. The container has flip open top lid to facilitate filling of the gabion
With the above list with us now, I would like to do some of the below listed tasks:
1.Understand the scope of the claim in light of the description
2.Analyze the prosecution history of this patent
3.May be even pull out prior art for the subject matter disclosed in this patent, and give my opinion with respect to novelty and inventive step
And I shall keep you updates about the progress in these tasks through my future posts in this blog!
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