I’ve been informed that Justice Sanjay Kishen Kaul (of the Bilcare fame) has reserved judgment in a very interesting patent matter involving a patented diagnostic testing kit for Hepatitus C. For those interested, the case is J Mitra vs Span Diagnostics. The facts briefly are as follows:
J Mitra applied for patent. Pregrant filed by Span, is decided in favour of J Mitra. Upon the grant of patent, J Mitra sues Span for infringement and asks for temporary injunction. Span counterclaims invalidity and also takes up the Gilette defense. Justice Kaul reserves judgment. And it is expected anytime this month.
Of course, this case hasn’t found any media attention yet, since it does not involve an MNC!! For those of us who are more interested in the jurisprudential aspects of patents than the emotional rhetoric around patents and the bad MNC’s that have come to exploit us, this will prove to be an interesting judgment.
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shamnad
can you pl through light on what is “Gilette defense”.any reference to further reading would be greatly appreciated
Dear Ravi,
Please see http://www.wuesthoff.de/pdf/wuesthoff_1175587278.pdf, where it is stated:
“In the UK, the so-called “Gillette defence” is available to the defendant (accused infringer). Under the “Gillette defence” there is no patent infringement if the patent claim is read so widely to cover the product that the claim becomes invalid over the prior art. In other words, the claim is construed so broadly that it is also so close to the prior art that there is lack ofnovelty or inventive step.”
Also see http://www.intelleigen.com/en/pdf/200607%20Write%20up%20by%20ckw.pdf which states:
“In a Gilette defense, the defendant’s argument is that if the plaintiff asserts broad interpretation for its patent claims so as to read onto the allegedly infringing product, the patentee runs the risks of having its patent anticipated by the prior art. If the claims are interpreted too narrowly to avoid a novelty attack, the allegedly infringing product might fall outside the scope of such an interpretation. Either way, the defendant wins if the Gillette defence is effectively deployed.”
many thanx shamnad
No relief could be obtained in respect of an invalid patent. If the defendant can prove that
the act complained of was merely what was disclosed in a publication which could be relied
on against the validity of the patent, without any substantial or patentable variation having
been made, he has a good defence. This is the so-called ‘Gillette defence’.
dear shamnad
it was a infomative piece of information on gilltte defence.thank u.sir is it posible to know the facts of the above mentioned case of j.mitra v span diagnostic.