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Patent Infringement & Non-Infringement

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“Infringement” is the unauthorized use of a patented invention. An infringement of a patent occurs when the exclusive rights of a patentee are violated. What constitutes an “infringement” has not been defined in the Patents Act. Whether the act of a person other than the patentee amounts to infringement or not would depend upon:

   (i) The extent of the monopoly right conferred by the patent which is interpreted from the specification and claims contained in the application of the patentee. An action which falls outside the scope of the claims would not amount to infringement.

   (ii) Whether he is infringing any of the monopoly rights of the patentee to make, distribute or sell the invention.

In United Telephone Coy v. St. George, 3 RPC 321, the plaintiffs were the owners of a patent claiming a combination for telephonic purposes of a diaphragm or tympanum with electric tension regulators operating in a closed circuit. The defendant’s instrument, which was alleged to be an infringement, consisted of a disc of carbonized leather behind a mouthpiece and a ball of carbonized wood suspended by means of a flexible metallic conductor so as to rest lightly by gravity against the disc.

It was held that there was infringement, as the defendant’s disc was a diaphragm within the meaning of the specification of the plaintiff, and the defendant’s disc and ball were tension regulators covered by the specification. Further the defendant’s instrument did not operate in a closed circuit. The immaterial variation in the defendant’s instrument would not protect him.


In an action for infringement of a patent, a defendant may plead any of the following defenses to prove non-infringement:

  1. Denial of infringement or of any intention or threat to infringe.
  2. Plaintiff is not entitled to sue for infringement.
  3. License to use the invention express or implied.
  4. Estoppel or res judicata.
  5. Equitable defenses such as laches, acquiescence, etc.
  6. Existence of a restrictive contract declared unlawful.
  7. Claims invalid on account of lack of novelty, and obviousness.

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