In suits for patent infringement, Section 111 of the Patents Act appears to place certain restrictions on the power of the Court to award damages or account of profits against defendants in three limited situations which are spelt out in the provision. Following are the three situations (which however do not limit the power of the Court to grant injunctions):
1. If the defendant proves that at the date of infringement, he was not aware and had no reasonable grounds to believe that a patent existed on the subject-matter/technology used by him
2. If the act of infringement is committed after a failure by the patentee to pay renewal fee for his patent within the prescribed statutory period (which does not include the period of extension sought, if any, by the patentee to pay the renewal fee)
3. If a patent specification is amended by way of a disclaimer, correction or explanation after the publication of the specification, no damages or account of profits may be granted until the date on which the amendment is allowed, unless the Court is satisfied that the specification as originally published was “framed in good faith and with reasonable skill and knowledge”.
A few questions come to my mind. Can ignorance of publication of the patent specification be legitimately argued as a defence under the first situation? I am not sure since publication of a patent specification is treated as constructive legal notice to all third parties. Further, under Situation 3, precisely because publication is deemed as constructive notice, any changes made to the published specification by way of amendment deprives the patentee from claiming damages for the period between the publication of the un-amended specification and date of allowance of the amendment.
Under Situation 3, how would a Court satisfy itself that the originally published un-amended specification was “framed in good faith and with reasonable skill and knowledge”, and not with a mischievous intent to hold back enabling disclosure from all third parties?
The broader question that could also be asked is, unless the existence of a patent is specifically brought to the notice of an alleged infringer/future defendant, can constructive notice by publication be deemed to give rise to the allegation of “wilful infringement” by the defendant? Also, is it fair and reasonable to expect all third parties to proactively look up every patent office journal to scan for and inspect published patent applications which they might be infringing?