Infringement is not settled with the Controller - it is dealt by courts. You may start by sending a notice of infringement, before starting a lawsuit (case) against the infringers
Appellate board is dissolved, it has been replaced by IPD (intellectual Property Division) at High Courts such as Delhi, Madras. All the appeals that could have been made towards Appellate board, will now be made to IPDs at the HCs as per jurisdictions. Clear?
If any amendment in claims is done after the grant of patent then how the damages will be calculated for that infringement, after publication of the application or the amendment?
It may not be a simple 'yes and no' scenario. First and foremost, the infringement damages are calculated from the day the infringement activity was started. The reason we talk about publication dates is to emphasize that the "like privileges" become applicable from the publication day itself (no rights before that) Coming back to the scenario, it is very subjective exercise taking into consideration what changes were made and how does it impact the infringement - if the amendments are allowable - it doesn't impact the priority of the claims - hence the rights
@@AbhayPorwalactually the question came from this scenario in 2010 question paper What should be the answer for the second question (ii) ? Your client "X" writes to you as follows: Our Indian patent issued in December 2009 describes and claims a process of reacting A with B under certain specified conditions to obtain product C. It is also essential that catalyst Q be present in order that product C may possess the desirable characteristics outlined in our disclosure. Unfortunately, none of the claims in the patent make any reference to catalyst Q at all, even though catalyst Q and the manner in which it is used in the process is clearly described in our disclosure. We would like to take action in the near future against a competitor of ours who has been using our process since the last one year. Do you think we will have difficulty enforcing our patent and, if so, is there anything you can do to improve our prospects for success against our competitor?" i) Advise X. ii) Assume that X's invention above has not yet been patented, but is merely the subject of a patent application before the Indian patent office. Would your advice be different? Consider both situations where the application has been published in the official journal as well as situations where it has not been so published?
Hello sir, It was difficult to understand section 113 , if you could explain it with a scenario, plz. Also, in a single patent validity of claims varies? In section 114 (2) also was doubtful.
S113: Imagine a first proceeding of infringement at IPD or HC, usually, a counter claim of validity of the patent is filed. During such proceedings, if it is found that the patent is indeed valid - can't be challenged. A certificate might be given to the patentee ( on request) that the patent was found to be valid. Now Imagine that in separate event, the patent gets challenged again( could be during another infringement proceedings) - in this proceedings also, if the patent survives the challenge, the patentee, apart from other damages (infringement), can ask for cost of such proceedings - because it was unfair on him to get challenged when he had the certificate of validity - unfair in the sense, the money that he need to spend to go through such court proceedings.
S114(2): What is the purpose of infringement proceedings? Do stop others from using your invention and also to recover some financial benefits, isn't it? Now, imagine, if during such infringement proceedings, when your patent was challenged, it was found that the claim which was getting infringed was found to be valid (good news!), But other claims were invalidated. In such cases, no financial benefits will be awarded even though your claim was valid and infringement was also proved. However, if the patentee were to prove (testify) that appropriate efforts were put in drafting the claims (not a shaddy work), the court may reconsider and award costs for such court proceedings. But still, no financial benefits against the infringement activities.
Yes, in a single patent application, a few claims might get invalidated, while others remain valid. Claims are statements that 'claim' boundaries around invention - a few boundaries are valid and others are rejected based on available priorart.
@@AbhayPorwal yes, i do agree those are theoretical, but I was mainly looking for better understanding for those sections.. that’s why I asked.., it would be great.. if you can put a short summary of the same. (just for understanding in a simple language).
hello sir, can you please tell if we make a entry for infringement proceedings in register of patent?
Notice of infringement and infringement lawsuit terms are different or same?
Infringement is not settled with the Controller - it is dealt by courts. You may start by sending a notice of infringement, before starting a lawsuit (case) against the infringers
@@AbhayPorwal so before notice of infringement only he can seek remedy under section 105 declaration as to non-infringement?
What does it mean suit of infringement can be file within three years of infringement
As per limitation Act, the infringement suit should be filed within 3 years from the date of infringement of the patent rights.
Hi sir, if u don't mind, can u plz share the link of section 117 of video because im not found the video of regarding that section.
Appellate board is dissolved, it has been replaced by IPD (intellectual Property Division) at High Courts such as Delhi, Madras. All the appeals that could have been made towards Appellate board, will now be made to IPDs at the HCs as per jurisdictions. Clear?
Ok thank u sir.
If any amendment in claims is done after the grant of patent then how the damages will be calculated for that infringement, after publication of the application or the amendment?
It may not be a simple 'yes and no' scenario. First and foremost, the infringement damages are calculated from the day the infringement activity was started. The reason we talk about publication dates is to emphasize that the "like privileges" become applicable from the publication day itself (no rights before that)
Coming back to the scenario, it is very subjective exercise taking into consideration what changes were made and how does it impact the infringement - if the amendments are allowable - it doesn't impact the priority of the claims - hence the rights
@@AbhayPorwalthank you very much I got it
@@AbhayPorwalactually the question came from this scenario in 2010 question paper
What should be the answer for the second question (ii) ?
Your client "X" writes to you as follows: Our Indian patent issued in December 2009 describes and claims a process of reacting A with B under certain specified conditions to obtain product C. It is also essential that catalyst Q be present in order that product C may possess the desirable characteristics outlined in our disclosure. Unfortunately, none of the claims in the patent make any reference to catalyst Q at all, even though catalyst Q and the manner in which it is used in the process is clearly described in our disclosure. We would like to take action in the near future against a competitor of ours who has been using our process since the last one year. Do you think we will have difficulty enforcing our patent and, if so, is there anything you can do to improve our prospects for success against our competitor?"
i) Advise X.
ii) Assume that X's invention above has not yet been patented, but is merely the subject of a patent application before the Indian patent office. Would your advice be different? Consider both situations where the application has been published in the official journal as well as situations where it has not been so published?
Hello sir,
It was difficult to understand section 113 , if you could explain it with a scenario, plz.
Also, in a single patent validity of claims varies?
In section 114 (2) also was doubtful.
S113: Imagine a first proceeding of infringement at IPD or HC, usually, a counter claim of validity of the patent is filed. During such proceedings, if it is found that the patent is indeed valid - can't be challenged. A certificate might be given to the patentee ( on request) that the patent was found to be valid.
Now Imagine that in separate event, the patent gets challenged again( could be during another infringement proceedings) - in this proceedings also, if the patent survives the challenge, the patentee, apart from other damages (infringement), can ask for cost of such proceedings - because it was unfair on him to get challenged when he had the certificate of validity - unfair in the sense, the money that he need to spend to go through such court proceedings.
S114(2): What is the purpose of infringement proceedings? Do stop others from using your invention and also to recover some financial benefits, isn't it?
Now, imagine, if during such infringement proceedings, when your patent was challenged, it was found that the claim which was getting infringed was found to be valid (good news!), But other claims were invalidated.
In such cases, no financial benefits will be awarded even though your claim was valid and infringement was also proved.
However, if the patentee were to prove (testify) that appropriate efforts were put in drafting the claims (not a shaddy work), the court may reconsider and award costs for such court proceedings. But still, no financial benefits against the infringement activities.
Yes, in a single patent application, a few claims might get invalidated, while others remain valid.
Claims are statements that 'claim' boundaries around invention - a few boundaries are valid and others are rejected based on available priorart.
Hello sir! Can you please tell where are sections 99-103 ? I cannot find it..
Considering those sections are purely theoretical with no actions, I didn't create sessions for those - do you think, is it required?
@@AbhayPorwal yes, i do agree those are theoretical, but I was mainly looking for better understanding for those sections.. that’s why I asked.., it would be great.. if you can put a short summary of the same. (just for understanding in a simple language).
@@machharforam Sure, let me see, how can I make it interesting for you all :-)
Thanks