Friday, July 29th, 2022
We have spoken a lot about intellectual property rights over the past few weeks but it would be unfair for us not to talk about how these rights can be infringed on especially with all the innovation and creation happening today.
Infringement is any act that interferes with the full enjoyment of the monopoly granted to the patentee or any activity that deprives the inventor, in whole or in part, directly or indirectly, of full enjoyment of the monopoly conferred by law. This is possible since a patent confers rights and obligations to patentees allowing its owner to exclude others from exploiting the patented invention. In this case, the owner is the only one allowed to exploit the invention as long as others are not given authorization, for example, by way of license to do so.
“Respect for inventors is the key for success of a patent system”Kalyan C. Kankanala, Fun IP, Fundamentals of Intellectual Property
The patent rights are granted according to both process and respect of product as per section 25 of the Patents Act. These rights include;
a) when the patent has been granted in respect of a product;
i. making, importing, offering for sale, selling, and using the product
ii. stocking the product to offer for sale, sell, or use the product;
b) when the patent has been granted in respect of a process—
i. using the process;
ii. do any of the acts referred to in paragraph (a) of this subsection in respect of a product obtained directly using the process.
Where a person other than the owner of a patent or a licensee does any of the acts in respect of the patented invention, that act shall constitute an infringement of the patent. Thus, where the owner of a patent or the licensee thinks that his or her patent has been or is about to be infringed, he or she may institute infringement proceedings in the High Court for the following reliefs;
(b) An injunction to prevent infringement or continuing infringement of the patent
(c) Any other civil remedy.
Infringement of any patent involves consideration of two key aspects. The first is whether the article or process alleged to infringe falls within the scope of the monopoly granted by the patent. The second is whether the alleged infringer has done any act of the monopoly which is given by a patent to its proprietor. To prove infringement, it’s not enough to compare the defendant’s allegedly infringing product to the Plaintiff’s product which is representative of the patent. The only way to determine whether there is an infringement is to compare the allegedly infringing product to the patent, and, in particular, to the patent claims and this rotates on the construction of the claims.
An infringement is generally a question of fact and a matter of construction of the claims therefore the onus to prove these claims lies on the plaintiff. There are two approaches by which this is done. The first is the literal approach, in this case, all claim elements are considered to be essential to the invention, and thus, the absence of any claimed element results in a finding of no literal infringement. It is an ‘all elements’ test.
A second approach is a purposive approach, with this approach, the court does not ask “What the patentee said?” but rather, “What was the inventor trying to say?” or, better yet, “What would a skilled reader have understood the patent to mean?” In Catnic Components Ltd. v. Hill & Smith Ltd.,  R.P.C. 183 (H.L.). Lord Diplock summarized the test as follows: “A patent specification should be given a purposive construction rather than a purely literal one”, where “purposive construction” means understanding language by what a reasonable person would understand the author to be using the words to mean.
The manufacture of any patented product during the term of a patent is considered an infringement of the patent regardless of the approach. Where a patent claims a product for a particular use, it does not matter where that product is to be used, or even whether it is ever used. Once the product is manufactured for that use, there is infringement. Therefore, any defendant must exercise discretion as they raise a defence against any claims of infringement. Regardless, in case you require an understanding of the rights you possess as a patentee and need avenues and ways to protect them, we can help.
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