In the present time, patent infringement can be done in many ways. There are lots of technologies in the market which are almost similar or are modifications of old technologies, so there are high chance that any other person can make use of or sell the patented product or process.
It becomes important for the patent holder to protect his invention from third parties so that he can enjoy his patented invention by making, using or selling by himself, or she can give the license to third parties to use or make the same invention to fulfil the public needs.
As we know a patent is an exclusive right, which excludes other parties from making use or selling the patent product or process. While following the process to file a patent application, we make the claims in complete specification over which we got the patent rights. But Sometimes a third party may try to infringe these patent rights intentionally or unintentionally, by making use or selling the patent invention in the market. This infringement can be done in different ways. in this article, we are going to discuss the various types of patents which are being done at present.
What is patent infringement?
Patent infringement refers to the unauthorised use manufacturing, selling or importation of a patented product or process without the consent of a patent holder. This constitutes a violation of the patent rights provided by the Patent Act to the person who has invented a new product or process. When any other person engages in such type of activity which comes under the scope of a patent claim, then he may be liable for the infringement, and the patent holder has the legal right to take legal action against that person.
Sometimes this infringement can be on the lowest scale, and the patent holder is unable to see it, so it is always recommended to the patent holder that he should keep monitoring his patent on the internet or in the market to search for any potential in infringement to protect his invention because such infra can also cause the impact on the brand name of a company.
Types of Patent Infringement
There are different types of patent infringement in India and other countries as well. So let us discuss the main types of patent infringement.
Direct Patent Infringement
Direct infringement happens when 3rd parties directly copy all the details and features of a patented product or process without any changes without the permission of the patent holder. For example, someone has created a soap by using turmeric almond and one specific ingredient, the 3rd party also made a soap by using these 3 ingredients, this is called a direct infringement of a patent because the 3rd party has not added anything new or modification of any of 3 ingredients and did not take permission from the patent holder.
There will be no difference in the product or process being used by 3rd parties for making the same product as filed by the real owner of such patented invention. The 3rd party is directly violating the rights of the patent holder. In such a situation the patent holder has the right to file an infringement suit against that 3rd party for infringing his patent rights.
Indirect Patent Infringement
Indirect infringement occurs when the third party indirectly contributes to infringement by helping other parties to infringe the patented product or process. There are mainly two types of indirect infringement of a patent.
Contributory infringement
This type of infringement occurs when an individual or a company provides the components or materials to a third party, which is specifically designed for the use in a product or process. In contributory infringement, the third-party knowingly supplies such components to other persons for the infringement. To file a suit of contributory infringement, you must prove that such supply components have no use other than infringement of a patented product or process.
Induced infringement
When a party actively encourages or induces another party the infringe a patent invention is called induced infringement of a patent. These types of infringement can be traced by actions, such as promoting the infringing products or providing the instructions for such infringement by use or engaging in activities that contribute to the infringement of a patent.
Wilful Patent Infringement
In willful infringement, the third party violates the rights of the patent holder intentionally. In this type of infringement, the other party may use, sell or offer to sell the patent product or process without any authorisation.
In such a condition, the patent owner can take legal proceedings against such a person who is infringing his patent rights. The court may award the damages to the patent holder in such a case, although proving willful infringement typically requires more Oral or Documentary evidences.
For example, if a company AB has developed a new technology for a smartphone and goes for a patent for the same technology. Now company XYZ, which is a competitor of AB company knows about the new patented technology, but decided to make and sell a similar smartphone which is using the same patent technology without getting any permission from AB company.
Now, in this situation, if the company AB can show some evidence that another company already knew about the patented technology, but still chose to use that technology without taking a license from the first company, then the first company can sue company XYZ for willful infringement.
Divided Patent Infringement
When more than one party collectively performs all the steps of a patented method and infringe, the patented invention is called divided infringement. In simple words when two or more than two parties, intentionally or unintentionally infringe, the rights of a holder are called divided infringement.
Difference between direct infringement and willful infringement
The difference between these two infringements is that direct infringement does not require any kind of special knowledge or intention to do the infringement. In the case of wilful infringement, the owner of the patent is required to prove that the infringer knew about the invention and intentionally chose to infringe the patented product or process.
Conclusion
In the case of infringement, there is no need to prove the intention of the infringer, but in the case of willful infringement, the Patentee has to prove in court the wilful intention of the third party that he knew about the patented technology, but still chose the way to infringe the patent invention.
Any person who is suffering from infringement to his invention can file a suit in the court so that he can protect his invention from infringers it can be a good opportunity for the patent holder to work with third-party if the third was infringing, his invention unintentionally because he can offer third-party to take the license from him, and in return, the patent holder can Enjoy the royalty over his invention.
I hope now you can differentiate between the different types of infringement. If you have any suggestions or curries, you can comment below.