Firth, Alison --- "Direct and Indirect Patent Infringement" [2009] ELECD 251; in Takenka, Toshiko (ed), "Patent Law and Theory" (Edward Elgar Publishing, 2009)

Book Title: Patent Law and Theory

Editor(s): Takenka, Toshiko

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424138

Section: Chapter 16

Section Title: Direct and Indirect Patent Infringement

Author(s): Firth, Alison

Number of pages: 25

Extract:

16 Direct and indirect patent infringement
Alison Firth



Introduction

Patent infringement
Proving patent infringement involves two distinct aspects. First, it must be
shown that a defendant is using the patented invention, whether a product or a
process. This will involve comparison of the defendant's product or process
with the patent claims. Very often, the claimed invention will involve a combi-
nation of features. For infringement to occur, all these features need to be
present,1 exactly as claimed (`literal infringement'), in the form of functional
equivalents under a doctrine of equivalents,2 or at least in spirit under a theory
of purposive construction (`non-literal infringement'). These tests give a
narrow scope of protection compared with, say, copyright infringement3 and
its concepts of `substantial taking'.
Secondly, it must be shown that the defendant is using the invention in a
way reserved exclusively to the patentee. Classically,4 the patentee is given the
right to `make' (product), `use' (product or process) or `vend' (product or
process) the invention in the territory for which the patent is in force. The
World Trade Organisation's agreement on Trade Related aspects of
Intellectual Property Rights (WTO TRIPs) now provides an international
minimum standard:


1 See, eg, MacLennan v Gilbert Technology Inc. (2004) 41 CPR (4th) 131
(Beaudry J) (Federal Court of Canada). Here the patent claimed a combination of saw
teeth and holder. Supply of replacement teeth did not infringe, though some were sold
with adaptors to achieve fit with the holder. Section ...