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Declaratory Suits - YouTube
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you
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there are two types of declaratory suits
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that can be filed with regard to patents
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infringement suit is something which a
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patentee would file a patent he would
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file an infringement suit to enforce the
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patent against potential infringes
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potential infringers also have certain
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tools which they can use against the
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patentee now these are called
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declaratory suits the first declaratory
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suit which the Patent Act mentions is
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the declaration of non-infringement now
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we understand the declaration of
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non-infringement as a pre-emptive suit a
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person who represents that the patentee
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may file an infant mint suit against him
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can approach the court proactively and
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get a declaration stating that his
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action the action that he is currently
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doing does not amount to infringement of
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the patent his patent so he essentially
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gets a declaration that his actions do
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not constitute infringement or his
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actions are non infringing so this is a
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mechanism by which competition is
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allowed and an injunction in an
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infringement suit is not used to
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restrain the acts of a legitimate
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business so a declaration as suit for
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declaration is filed under Section 105
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as I mentioned it's an anticipatory
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action against the patentee or the
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licensee now this action is done because
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there is a threat of an infringement
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action the person who approaches the
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court with a declaratory suit apprehends
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an infringement action and hence does
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this
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it amounts to risk assessment before
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venturing into commercial production say
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entity wants to know whether they can
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enter into commercial production and
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there are patterns which belong to
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others they could get a declaratory
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relief before investing into commercial
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production by knowing where they stand
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with regard to a patent so if they get a
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declaration saying that their process is
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non-infringing then it would mean that
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tomorrow they cannot be a suit filed by
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the patentee stopping their activities
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so the parties to the suit are any
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person having and who anticipates or who
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expects an infringement action can file
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the suit and it can be filed against the
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patentee or the holder of the exclusive
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license of the patent now the
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jurisdiction is same as the infant meant
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suit it can be filed before the High
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Court or the district court and it is
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filed where the section 105 act they are
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done now there are certain conditions
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that have to be met before filing the
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suit the person who files the suit
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should seek a written acknowledgement
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from the patentee or the licensee and
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the licensee or the patentee should
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refuse an acknowledgement to give such
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an acknowledgement now when the court
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passes an declaration it means that the
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patentee has not infringed the said
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patent the second type of declaratory
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suit which persons who apprehend
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infringement action can file proactively
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are called the declaration of groundless
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threat now relief in a groundless threat
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suit a suit is filed under 106 of the
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patents Act it is filed by an aggrieved
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person an aggrieved person as a
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who is subject to threats of
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infringement by the patentee and it can
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be filed against any person who was
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entitled to a patent or an application
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who was interested in a patent or an
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application or anyone whether interested
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or not
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now the reference here to this to a
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patent or a pending application because
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they could be threats made by potential
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patentees a patent applicant who has a
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patent can make a threat to a competitor
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and stop his legitimate business or
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bring uncertainty over his legitimate
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business stating that I will soon get a
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patent and if I get a patent I will be
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initiating an infringement action
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against you now you may wonder is it
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wrong to mention or is it wrong to state
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that you would initiate infringement
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action against a potential infringer the
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law is not against infringement actions
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but it is against groundless threats of
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infringement action so if you make a
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statement that you will follow your
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threat with an infringement action then
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the law expects you to carry out your
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threat so the logic behind this
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provision is that legitimate business
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interests not the logic behind this
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provision is that legitimate businesses
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should not be or should not operate
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under uncertainty because somebody else
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is threatening to stop and there stop
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there somebody else is threatening to
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stop their business so a person who's
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aggrieved a person who's subject to
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these groundless threats of infringement
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suit can claim the following relief the
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person can ask for a declaration that
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the threats are unjustifiable he can ask
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for an injunction to restrain the person
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from continuing the threats he can also
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ask for damages damages or compensation
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now the defense in these cases if a
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person files a case of declaring a
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threat to be a groundless threat then
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the patentee can state that the acts for
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proceedings threaten actually constitute
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infringement so in a way the patentee
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can mention or state that these are not
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groundless threats there are actual real
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threats and there are grounds for
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initiating infringement suit now the
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mere fact that the patentee points to
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the existence of a patent will not
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amount to a groundless threat the threat
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has to be explicit and it has to be
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groundless in the sense that it is being
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done without any objective of filing an
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infringement suit now there could be
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threads during contractual relationship
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between a patentee and the licensee they
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could be threats that come by way of a
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legal notice issued by the patentee
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there could be oral threads which can
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happen during discussions they could be
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a written threat they could be written
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threat and they could be a threat of
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future infringements threat could also
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manifest in without prejudice
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communications
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