Once the patentee is granted patent protection; the claims made in the application are the rights that should not be infringed. In certain cases, the owner of the invention can file a suit for infringement against the infringer.
Patent rights are not enforced by themselves like trademark and copyright law. The implementation of patent right can only be done via patent litigation.
Moreover, The government is under no obligations to take steps against the infringer unless the inventor presses charges.
While determining whether the use of patent infringement has occurred, the court will compare the subject matter of the patentee's application and the subject matter of the infringer application.
Following would constitute infringement of invention
Under patent law rights of the patentee are infringed if anyone uses the products commercially although in case of process patent the mere use of method would amount to infringement in India.
At the time when you develop an idea and decide to invest in developing the idea further, it is recommended to conduct a quick patent search for the invention and see that you are not encroaching upon the rights already established by an inventor before.
Patent infringement is known to occur either directly or indirectly.
When infringement is done deliberately and knowing that they are copying the invention of the patentee. This is the standard form of infringement which it is a blatant copy of the claims filed by the patentee.
For liability to be present the indirect infringement somehow result in direct infringement. Indirect infringement has been divided into two types:
Contributory Infringement
Materials that are used in the patented invention and there are no other commercial use other than what done by the patentee. The contributory infringement can only happen if the seller intends to commit infringement.
Induced Infringement
Any activity is done by the third party which will cause the other person to directly infringe upon the grant of a patent on the invention. In this case, the inducer must knowingly infringe upon the rights of the patentee.
The analysis of "willful" in willful infringement is done on the basis of interpretations made by the court, and hence the definition of willful infringement depends on the discretion of the court.
If the court finds that the infringement of the patent was willful, the penalty imposed on the infringer is substantial financially, and sometime it may amount to triple the number of damages incurred by the inventor.
When monopoly rights of the patentee are infringed, rights of the patentee are protected only through judicial intervention.
Reliefs granted by the court in case of patent infringement.
The patentee also has right to see that the fees of the attorney are covered in the litigation.