Tag: Intellectual property rights

Patent Infringement | Doctrines of Equivalents and Colorable Variation

September 20, 2022
/ Leave a Comment on Patent Infringement | Doctrines of Equivalents and Colorable Variation

3 min
1 year
572 words

Tagged India, Intellectual property rights, IPR, Law, Patent infringement

Patent Infringement | Doctrines of Equivalents and Colorable Variation

Patent Infringement is referred to as the commission of a violation of a patent owner’s act without his/her consent.

keywords – patent infringement, doctrines, patents, doctrine of equivalents, doctrine of colorable variation

Written By – Shriya Biswas

The Doctrine of Equivalents

Patent Infringement is referred to as the commission of a violation of a patent owner’s act without his/her consent. One commits a “patent infringement” by using, selling, or offering to sell something that contains some element of a patent claim while that particular patent is still in effect.

Patent infringement falls into two categories: literal infringement and doctrine of equivalents.
The term “literal infringement” means that each and every element has an identical
resemblance to the alleged device.
The “doctrine of equivalents” is a rule that allows a court of law to hold a party responsible if the infringing device is equivalent or has similarities to the claimed invention. The claim, however, has certain limits. The scope of the patent owner is limited by:

The prior art
The doctrine of “prosecution history estoppel”

Once a claim is made then a thorough analysis is done considering the following steps:

Construing the scope of the literal language of the claims.
Compare the claims with the accused device to see if any literal infringement is done.
If there is no literal infringement found then the scope is construed under the doctrine
of equivalent.

Doctrine Of Equivalent Patents in India

This doctrine is not popular in India and has not been dealt with extensively. It was first
discussed in the case of Ravi Kamal Bali vs Kala Tech in India. In this case, the court of law
found that the claimed product and the patent product had the same usage and worked on the
principles or doctrines. However, since the court did not find any major difference in both
constructional and functional aspects of the product, the court ruled against the findings of
the doctrine.
Thus, the practice of the doctrine had been established but no explicit announcement had
been made or any major drafting had been done.

Conclusion

Therefore, we see that The Doctrine of Equivalent Patents has been implemented to protect a
patentee from non-literal infringement. However, the scope of the amount of non-literal
infringement can be only decided by a court of law and also depends on a large amount of the
particular case.

The Doctrine of Colorable Variation

This particular doctrine deals with the determination of infringement which is a minor
modification in the process but the features and results are the same as that of the patented
version.
A major example of the usage of this doctrine is in the case of Lektophone Corporation vs
The Rola Company.
Controversy arose when a radio loudspeaker was manufactured by the defendant and a
similar sound-producing device was invented by the plaintiff for phonographs. The plaintiff
claimed that the “size and dimensions” were the main features of the device and that had been
infringed by the radio loudspeaker.
However, the court ruled in favor of the defendant as there were more important aspects to
consider other than size and dimension such as functions of the invention.

Conclusion

Thus, we see that these legal rules protect the works and inventions of any patent holder from
damage or imitation. It declares that any party is considered to infringe if it shows
resemblance to a work of a patent holder.
If guilty of Patent Infringement, there are grave consequences. The offender is liable for a
fine of up to 10 lakhs and in severe cases, it can also result in imprisonment for 6 months.

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The Design Act | salient features & Important Principles

Article / Law

August 29, 2022
/ Leave a Comment on The Design Act | salient features & Important Principles

7 min
1 year
1,219 word

Tagged 2000, Design act, General Knowledge, India, Intellectual property rights

The Design Act | salient features & Important Principles

keywords – Design Act, IPR, design protection, intellectual property

Written By – Sangamithra S

Introduction

The Design Act was designed to defend and preserve the distinctive industrial designs applied to certain goods produced through industrial procedures. Nowadays, every mechanical or commercial enterprise has its original, exclusive, and evident designs.

According to Section 2(d), “Design” refers to features such as shape, pattern, configuration, ornament, or composition of colours or lines that are applied in three dimensions, two dimensions, or both using any of the processes, whether manual, chemical, mechanical, separate, or combined, and that in the finished article appeal to or are judged entirely by the eye.

Thus, the creator or owner of the item will be granted an Industrial Designs Right under this demonstration. This Intellectual Property Right protects the visual plan, which includes the style, appearance, design, and so forth, of the contemporary item.

The Design Act of 1911 was employed in the past. In order to bring the Design Act up to par with international law, The Design Act, 2000 was made.

Nevertheless, it exempts:

Any construction method, principle, or object that is merely mechanical in nature, except any trademark as set out in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958;

The term “property mark” as used in section 479 of the Indian Penal Code, 1860, is not included.

Any artistic work as described in clause (c) of section 2 of the Copyright Act of 1957 is excluded.

Salient Features of the Act

Based on the material that was utilised to create that material, a classification was formed.
The design’s subject matter serves as the only foundation for the classification.
‘Absolute Novelty’ makes it possible to judge a novelty based on earlier publishing of any work.
An object’s registration as a design can be restored.
If there is any infringement, the severity of the punishment is increased.
A registered design’s two-year confidential period is likewise nullified.
Regulation of anti-competitive behaviour in licence agreements.
Before registering a design, the laws governing application substitution are specified.
Cases may be forwarded to the high court by the district courts, who also have the faculty and authority to do so.
It incorporates the provisions relating to the controller’s authority being delegated to other controllers and the examiner’s responsibility.

Registration

Industrial design protection promotes fair competition in the sector by fostering innovation, creativity, and originality. A specific product’s design boosts both its marketability and monetary value. When a design is registered, the owner gains exclusivity, and the buyer can quickly tell that a product is associated with a certain brand. Registered designs can be utilised as a corporate asset to pay off debts or sold in the market.

The following prerequisites must be met for the design to qualify for registration under the Design Act of 2000 and receive legal protection:

The feature of novelty
There must be no earlier publishing of the design, and it must be original.
Applying design to an article
Design work shouldn’t conflict with India’s public morals, security, or order.

Section 10 of the Designs Act of 2000 states that once a design is registered, the copyright lasts for ten years.

Infringement

The grounds for design infringement or piracy are outlined in Section 22 of the aforementioned Act, and they may only occur when the design’s copyright is in effect.

A design is violated when,

a registered design is used for commercial purposes without the registered proprietor’s permission or written approval;

the design, or any evident or fraudulent imitation thereof, is applied to any object or class of articles for which the design has been registered, without the registered owner’s authorization.

knowing that the design or any obvious or fraudulent imitation of it has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, one commits design infringement when they publish, expose, or cause to be published, exposed, or exposed for sale that article.

Both designs must be evaluated in order to determine whether a false or evident replica of the design has been made. To determine whether “fraudulent” / “obvious imitation” has occurred or not, the majority of decisions have relied on the test of judging by the eye.

Remedies for Design Infringement

The Design Act states in Section 22(2) that a person who violates the design is liable. The same provision also offers the registered owner recourse for design infringement. Consequently, the following is the liability of the party who breaches the aforementioned Act:

The Design Act’s Section 22 (2) (a) requires the offender to pay Rs. 25,000 for each violation. The whole sum must equal Rs. 50,000. The aforementioned sum is for the infringement recovery;

According to Section 22(2)(b), the registered design owner has specific rights that allow for the recovery of damages and the holding of violators accountable.

For instance, the Bombay High Court made a decision about Section 22 of the Act, which allows lawsuits against “any individual” in this section, in Videocon Industries v. Whirlpool of India Limited. A registered owner may be prohibited from using a registered design by an order of injunction issued by the High Court in accordance with Section 22 of the Design Act or by the Controller in accordance with Section 19 of the Design Act, depending on the specifics of the case. Consider a certified owner does not request their design be added to a product that is being sold or connected to the sale indicated above. Another registered owner cannot use Section 22 in that situation.

As a result, only the use of the disputed design is qualified for the Section 22 remedies for Design Infringement. The infringement suit of a registered design extends against any person who would incorporate a registered owner, as demonstrated in Section 22 and sub-sections 1 to 3 in particular. Hence, the owner of a registered design may sue the infringers for the same. To compensate for the loss that the registered owner experiences, liability is imposed on the violators. Additionally, the owner must mark all products covered by a registered design in order to move the design infringement process along.

Conclusion

Design is therefore a type of intellectual property that describes mental creations like designs for industrial objects that are eventually employed in commerce. It is the end product of an individual’s intellectual pursuits. Once a design is registered, the registered proprietor has the legal right to file a lawsuit, in a court no lower than the District Court, against individuals who violate the design, in order to cease such exploitation and recover any damages that are legally owed to them. Please be aware, nonetheless, that if the design is not registered under the Designs Act of 2000, there will be no legal basis for taking legal action against the infringer in accordance with the Act’s provisions.

References

Das, S. (2021). Design Infringement; www.iiprd.com.

Kholia, P. (2021, April 6). [Law Notes] The Designs Act of 2000 | IPR by Priyanshi Kholia; www.mylawman.co.in.

Nambiar, H. & Krishnaa, S. (n.d.). Design act, 2000. Legal Service India – Law, Lawyers and Legal Resources.

Nanadikar, P. (2021, November 28). Steps involved in registration of Design Act, 2022

Pal, C. (2020). Industrial Design – An Imperative IP Right.

Singh, K. (2021, December 31). What are the Remedies for Design Infringement? – An Overview. Swarit Advisors;

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