Date post: | 21-Jan-2018 |
Category: |
Law |
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Infringement Analysis
Dr. Kalyan C. Kankanala
[email protected] URL: www.bananaip.com
Books: www.kalyankankanala.com
Patent Rights
• Territory
• Product Patent - Make, Use, Sell, Offer for
Sale and Import.
• Process patent - Use
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Infringement
Types
Direct
• Literal
• Equivalent
Indirect
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Direct Infringement
• Claim Construction
• Comparison
• Claim by claim - element by element
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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.
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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.
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Claim Elements
• Base
• Solid rod
• Rotor
• 3 Wings
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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 in turn is connected to a rotor
with three wings.
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
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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Indirect Infringement
• Contributory Infringement
• Inducement to infringe
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Defenses
Government use
Research Exemptions
Experiments or education
FDA approval
Parallel Imports
Other Defenses
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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, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
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, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Patent
CLAIM 1
1) 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
uninterrupted longitudinal weld line
connecting said mesh layer to said guard
panel….
Mesh layer
Guard panel
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Product
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, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Patent Claim
• A screen apparatus for a frame, said apparatus comprising:
– an elongated element, said elongated element adapted to be secured
to at least one of a top portion of the frame and a support structure in
a vicinity of the frame;
– at least one moveable element, said moveable element configured to
be moveable secured to said elongated element; and
– at least one sheet connected to the moveable element, wherein said
moveable element is configured to slide on said elongated element
thereby moving the sheet between a closed and open positions.
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Product 1
• XYZ offers innovative silk curtains for sale. The speciality of the
curtains is that you will not need curtain rings to open and close the
curtains. The curtains come with loops made of silk, which can be
looped over a curtain rod of any shape. They can be easily closed
and opened at will.
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Product 2
• ABC manufactures silk ropes for XYZ. The silk rope can be
fastened to the loops of curtains. The rope runs over a pulley and
has knotted ends that allow users to open and close the curtain.
• XYZ incorporates the rope and pulley mechanism in its curtains and
sells them to customers.
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Example
Product 3
• XYZ Tech sells wireless curtains imported from USA. The curtains
can be opened and closed using an App on a cell phone. The App
comes with a slider that allows a user to control the extent to which
a curtain needs to be opened or closed. The App interacts with a
wireless receiver on the curtain rod, which activates and moves the
pulley mechanism in the requisite direction based on user inputs.
Copyright, BananaIP, 2017. Governed by CC BY-ND-SA-NC License 4.0
Dr. Kalyan C. Kankanala’s Latest IP Thriller – The Dravidian
ABOUT THE DRAVIDIAN
The Dravidian tribe in the Western Ghats holds the key to
ancient knowledge capable of redefining the fundamentals of
modern medicine. When an army of Bio Pirates descend on
them, the warrior tribe is faced with an adversary that must be
taken down at all costs to avoid complete destruction. The last
weapon in the Dravidian arsenal is Arjun Mamidi, a young,
blind lawyer.
Can Arjun save the Dravidians and their invaluable knowledge
from impending doom? Or will the knowledge and the men
guarding it be lost forever?
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