In order to establish an infringement of a patent, the first step is to interpret the claim; the importance of claim is to be noted since the claim is the name of game. The interpretation of a claim can only be done by the court; a jury is not authorised to interest it1. One must consider minutely whether or not a process involves infringing elements in the claim. For example, where the language of the claim does not indicate a direct infringement as the character of product is not defined, or the ingredients falling within the manufacturing process fail to correspond to a recipe's arrangement, such a claim, within its fold bears a broad meaning, hence it cannot be construed more narrowly. There is a widely-observed tension between interpreting the claims by using the written description (allowed) and reading limitations from description into the claims (not allowed) if a claim clearly has a broad meaning, it should not be construed more narrowly in the rest of the specification. The scope of the claim may not be limited to the specific embodiments of the invention described in the application2.
Sometimes manufacturing processes do not fall within the literal terms of a claim and reverse doctrine of equivalence is also not attracted as there is no any indirect infringement. In such a situation there is no claim of infringement.
As regards indirect infringements, there are two categories of indirect infringement:
a) Active inducement or contributory infringement, that is, anyone who actively induces infringement of a patent is liable for consequences as an infringer3.
b) Contributory infringement, this infringement arises where one offers, sells or imports materials by knowing that the same are components of a patented invention or are used in practising a patented process4.
For such infringing uses the material must be specially made or designed. For example, there exists no liability for providing a "staple article of commerce" that is "suitable for substantial non-infringing uses5." A product does not infringe an existing patent, since for infringement, the device or process under consideration must contain a literal or equivalent counterpart to every element of the patent claim in question.
Where the copy does not fall within the claim of the patent copying of a product is not infringement. And where, the facts acknowledge that there are elements of patent claim that do not appear (either literally or as equivalents) in the product, it may be argued that there is an overall equivalence between the two products, but that is insufficient to establish an infringement. In addition, where competing products are substitutes from the consumer's point of view, in such a case the said evidence will be insufficient to support an infringement under the doctrine of equivalents.
Some of the general principles in this regard state:
1. The patentee has the right to exclude others from making, using, offering to sell, selling, or importing the patented invention.
2. To gain a patent, one must permit certain information to be disclosed to the world in the issued patent. The information is free for others to exploit, provided they do not infringe the patent claims.
3. Patent infringement does not require that the infringer copied the invention from the inventor in any way. Someone who independently develops a product or process is still liable for infringement if they make, use, sell, and offer to sell, or import a product or process that falls within the patent claims. Good faith and independent work are not defences to patent infringement.
4. Claim interpretation is very fact-specific, so there is no general rule governing whether and "or" used in a claim will be interpreted as exclusive or inclusive. The same word is frequently interpreted to carry different meaning in the claims of different patents.
5. In construing patent terms, the court should look first to the patent itself, then to the prosecution history of the patent and only then to extrinsic evidence, such as expert and inventor testimony, dictionaries, and learned treatises.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. See Markman v. Westview investments, 517 US 370 (1996)
2. Stephen M. MacJhon, Patents: Hiding from History, 24 Santaclara Computer and High Tech Journal, 961 (2008)
3. 35 USC §271(b)
4. 35 USC §271 (b)
5. When should one be liable for infringement? The Patent statute requires knowledge of the infringement for secondary liability. Wilful blindness to infringement is sufficient to meet the knowledge requirement. See Global Tech Appliances Inc v. SEBS.A. 131 S.CT 2060 (2011)
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