Infringement Analysis

Kalyan. kalyan@brainleague.com www.kalyankankanala.com

Patent Rights
• Territory • Product Patent - Make, Use, Sell, Offer for Sale and Import. • Process patent - Use

Copyright, Brain League, 2011.

Infringement
• Types – Direct • Literal • Equivalent – Indirect

Copyright, Brain League, 2011.

Direct Infringement
• Claim Construction • Comparison • Claim by claim - element by element

Copyright, Brain League, 2011.

Claim Construction
• Claim • Preamble • Transition • Body

• I claim a 'ceiling Fan' comprising of a base connected to a solid rod, which in turn is connected to a rotor with three wings.
Copyright, Brain League, 2011.

Claim Construction
• Preamble - I claim a 'ceiling Fan' • Transition - comprising of • Body - base connected to a solid rod, which in turn is connected to a rotor with three wings.

Copyright, Brain League, 2011.

Claim Elements
• • • • Base Solid rod Rotor 3 Wings

Copyright, Brain League, 2011.

Is this product infringing?
• A ceiling fan having a base to be attached to the ceiling and which has a hollow rod connected to the base. The hollow rod is connected to a circular rotor having 4 wings. • I claim a 'ceiling Fan' comprising of a base connected to a solid rod, which inturn is connected to a rotor with three wings.
Copyright, Brain League, 2011.

Doctrine of Equivalence
• • • • • Equivalents of a claim In substance equivalent Function-Way-Result Test Prosecution History Estoppel Obviousness Test – Material Effect – Part of prior art

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Lalabhai v. Chimanlal
• • • • • Process of treating dry fruits Comparison Sulphuric Acid - Washing Soda muriatic acid - Acetic acid Sulphur dioxide fumes under pressure - Sulphur dioxide fumes without pressure
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Raj Prakash V. Mangat Ram
• Process - Printing picture films for use in film strip viewer • Respondents - Film Viewers Pictures and films of different dimensions • Held liable - Substantially Equivalent
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Indirect Infringement
• Contributory Infringement • Inducement to infringe

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Defenses
• Government use • Research Exemptions • Experiments or education • FDA approval • Other Defenses

Copyright, Brain League, 2011.

Example
• Flav sells fruits with flavours induced into them. Sells fruits like grapes, apples and so on with orange, mango and any other flavour induced into them. Flav's process is as follows: • Frozen fruits are sorted, sliced and de-frosted; • Water and/or acid treatment is given to the fruits to remove their natural flavour by removing sugars, acids and other water soluble ingredients; • Fruits are then immersed in sugar syrup and other flavoured liquids for about three hours; and • Air is blown on the fruits with force to dry them. • Flav wishes to avoid patent risks in India. What should it do?

Copyright, Brain League, 2011.

Example
• • • Claim A process for preparing a flavored dried fruit product said process comprising: (a) treating a dried fruit with an acidulant being selected from the group consisting of tartaric acid, malic acid, citric acid, ascorbic acid, phosphoric acid, and fumaric acid, in an amount and for a period of time which is sufficient to substantially remove the natural flavor of the dried fruit; (b) dehydrating the treated dried fruit to obtain a desired moisture content; and (c) treating the dried fruit during step (a) or after step (b) with a flavoring agent having a flavor which does not substantially correspond to the natural flavor of the dried fruit. Infringing?
Copyright, Brain League, 2011.

• •

Patent A CLAIM 1
1)

Example
Mesh layer

A composite gutter guard …, said gutter guard comprising: (a) a guard panel (b) a mesh layer overlying said guard panel …; and (c) a continuous heat weld defining an Guard uninterrupted longitudinal panel weld line connecting said mesh layer to said guard Copyright, Brain League, 2011. panel….

Example
Product B
Gutter guard is comprised of a mesh screen attached to a guard panel by means of an adhesive, hot glue, which is later cooled.

Copyright, Brain League, 2011.

FTO Analysis Process
• Identify key elements of the product • Develop a search strategy • Patent screening • Patent analysis • Report

Copyright, Brain League, 2011.

"... A blind lawyer, A dog that dreams, A viral epidemic and A patent infringement suit...."
- Timely Arrival (The Hindu)
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