Patent infringement Analysis - IPRL Class on Paper II : Law of Patents: by Dr. Kalyan Kankanala

Copyright, BananaIP (BIP) Counsels, 2020
Infringement Analysis
Dr. Kalyan C. Kankanala
BananaIP Counsels
contact@bananaip.com

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

Infringement
• Types
• Direct
– Literal
– Equivalent
• Indirect

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

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.

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.

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

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.

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

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

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.

Example
Claim 1. A flat folded personal respiratory protection device
comprising:
a non-pleated main body comprising:
a first portion;
a second portion distinguished from the first portion by a
first line of demarcation;
a third portion distinguished from the second portion by a
second line of demarcation ;
and a bisecting fold that is substantially vertical when
viewed from the front when the device is oriented as in use
on a wearer, the substantially vertical bisecting fold
extending through the first portion, second portion and
third portion; wherein the device is capable of being folded
to a first substantially flat-folded configuration along the
bisecting fold and is capable of being unfolded to a convex
open configuration.

Example
Claimed Device Allegedly Infringing Device
3M INNOVATIVE PROPERTIES COMPANY Vs. VENUS SAFETY & HEALTH PVT LTD & ANR, CS(OS) No.2558/2013

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?

Example
Flav sells fruits with flavors induced into them. Sells fruits like grapes, apples
and so on with orange, mango and any other flavor 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 flavor by
removing sugars, acids and other water soluble ingredients;
• Fruits are then immersed in sugar syrup and other flavored liquids for about
three hours; and
• Air is blown on the fruits with force to dry them.

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.

Example
Product 1
XYZ offers innovative silk curtains for sale. The specialty 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.

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.

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.

Indirect Infringement
• Contributory Infringement
• Inducement to infringe

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

Compulsory Licenses
• General
• Emergency
• Export
• Related Patents

Suggested Readings
Patents, Compulsory Licensing and Business Strategy:
https://www.bananaip.com/ip-news-center/patents-compulsory-
licensing-and-business-strategy/
Shielding Patent Attacks - A Peek at Patent Defenses in India:
https://www.bananaip.com/ip-news-center/shielding-patent-attacks-
peek-at-patent/

EPIDEMIC
Inspired from real life experiences, this novel tells the
story of Arjun, a young, blind lawyer who battles to save
lives during a viral epidemic. It is a realistic modern day
drama about defenseless victims and fatal diseases
exploited for commercial gain taken directly from the
pages of the daily news.
As a deadly viral infection rages across the country, a
spirited team of doctors set out to combat its spread.
But their efforts are thwarted by a pharma major,
Berminger, which uses its patents to create artificial
scarcity of the only drug that seems to work. As the
Government refuses to come to their rescue, the
doctors approach the Court for justice. Arjun, an
upcoming lawyer agrees to represent them, and what
follows is a thrilling, riveting and evocative Courtroom
drama.

Download Dr. Kalyan’s books

Thank You
Contact us
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Bangalore – 560062.
Email: contact@bananaip.com
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Patent infringement Analysis - IPRL Class on Paper II : Law of Patents: by Dr. Kalyan Kankanala

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Patent infringement Analysis - IPRL Class on Paper II : Law of Patents: by Dr. Kalyan Kankanala