Patent Infringement: Types and Penalties

Patent Infringement is committed by using, selling any patented invention without prior authorization from the patent holder. The patent holder, in this case, can choose to sue the infringing party or can simply ask for compensation for unauthorized use.

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.

Enforcement of Rights

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. 

How to determine when a patent is Infringed?

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

  • Mechanical equivalents
  • Copying essential features of the inventions
  • Immaterial variation of the invention
  • Slight imitation of the essential features of the 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.

Activities Exempted from Infringement Proceeding

  • Government Use
  • Research
  • Patented drugs by health institutions
  • The use of the patented invention on foreign territory or vessel
  • Parallel Import

How to prevent Patent infringement suit?

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.

Types of Patent Infringement 

Patent infringement is known to occur either directly or indirectly.

Direct Infringement

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.

Indirect Infringement

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.

Willful Infringement

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.

  • Injunction
  • Damages
  • Order of destruction
  • Certificate of validity
  • Permanent Injunction

The patentee also has right to see that the fees of the attorney are covered in the litigation.

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