Virtual patent marking and deemed notice
One of the defences available to a defendant in a patent infringement suit for avoiding damages, is that he/she was unaware of the existence of the patent(s) alleged to be infringed. This is not available for avoiding injunction. This is enshrined in Section 111(1) of the Patents Act, 1970. This defence is a matter of trial and proving the negative is not easy. The question is whether this language in Section 111(1) and Explanation could allow room for ‘virtual marking’ of patented products i.e. whether, instead of putting the actual patent numbers on the product/packaging, a weblink or URL of page showing the list of active patents can be provided. This question also needs to be answered in the context of Section 120 of the Act which prescribes punishment for false representation or marking of patents...
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