The essence of a patent is conferring of the exclusive rig ht on the patentee. Yet some restricted use of a patented invention by a person other than the patentee is permissible under the law.
For such instance, use of a patented invention is permissible for research or experimental purposes or for imparting knowledge or instructions to pupils.
Infringement of the patent:
The right conferred by the Patent is the exclusive right to make, use, exercise, sells or distributes the invention n India. Infringement consists in the violation of any of these rights.
The act expressly provides that use by a person other than the patentee, patentee’s assignee or licensee would be an infringement of the patent and as such illegal.
Remedy for infringement of patent:
An action for infringement must be instituted by way of a suit in any District Court or an Appellate Board having jurisdiction to entertain the suit.
The plaintiff on satisfying the court about infringement of his patent would be entitled to the following relief:
(i) Interlocutory injunction
(iii) Account of profits
The Plaintiff may at the commencement of the action move for an interim injunction to restrain the defendant from committing the acts complained of until the hearing of the action or further orders.
The plaintiff should make out a prima facie case and also show that the balance of convenience lies in his favour.
In assessing the damages the important question is what is the loss sustained by the patentee. The loss must be the natural and direct consequence of the defendant’s acts. The object of damages is to compensate for loss or injury.
Accounts of profits:
Where a patentee claims the profits made by the unauthorized use of his patent, it is important to ascertain how much of his invention was appropriated, in order to determine what proportion of the net profits realised by the infringer was attributable to its use.