Patent infringement in India occurs when a person or business, without the authorisation of the patentee, performs an act that falls within the exclusive rights granted by a valid patent. A patent gives its proprietor statutory rights over the patented invention and enables the patentee to take legal action against unauthorised use.
The primary provisions governing patent infringement and remedies in India are found in the Patents Act, 1970, particularly Sections 48, 64, 104, 104A, 107 and 108.
Patent infringement disputes can involve complex questions of claim construction, prior art, patent validity, technical evidence, and the scope of the patented invention. Therefore, simply showing that two products appear similar is generally not enough to establish infringement.
What is Patent Infringement in India?
Patent infringement occurs when a person, without the consent of the patentee, carries out an act that is prohibited by the exclusive rights granted under the patent.
The specific acts that may constitute infringement depend upon whether the patent protects a product or a process.
Under Section 48 of the Patents Act, 1970, the patentee has exclusive rights in relation to the patented invention, subject to the provisions of the Act.
For a product patent, the patentee can prevent unauthorised third parties from:
- Making the patented product;
- Using the patented product;
- Offering it for sale;
- Selling it; or
- Importing it into India.
For a process patent, the patentee can prevent unauthorised use of the patented process and certain dealings with a product obtained directly through that process.
Rights of a Patentee Under Section 48
Section 48 is one of the most important provisions concerning the rights of a patentee in India.
The precise scope of protection depends upon the claims of the patent.
Product Patent
Where the patent relates to a product, the patentee has the right to prevent third parties from commercially exploiting the patented product without consent, subject to the limitations and exceptions under the Patents Act.
Process Patent
Where the patent relates to a process, the patentee can prevent unauthorised use of the patented process and certain acts involving products obtained directly by that process.
Therefore, the rights of a patentee are determined by the scope of the patent claims, rather than merely by the general description of the invention.
Does Owning a Product Give You Patent Rights?
No.
Ownership of a physical product does not automatically give a person the right to commercially exploit a patented invention incorporated into that product.
For example, purchasing a machine that contains a patented technology does not necessarily mean that the purchaser has the right to reproduce, manufacture or commercially exploit the patented technology.
Patent rights arise from the patent grant and the scope of its claims, subject to the applicable statutory limitations.
How is Patent Infringement Determined?
Patent infringement is primarily a claim-construction and comparison exercise.
The court generally examines the claims of the patent and determines whether the allegedly infringing product or process falls within the scope of those claims.
The analysis may involve:
- Identifying the relevant patent claims;
- Construing the meaning and scope of those claims;
- Identifying the features or elements required by the claims;
- Examining the accused product or process;
- Comparing the accused product or process with the claimed invention; and
- Determining whether the accused activity falls within the scope of the patent.
The patent specification may assist the court in understanding and construing the claims. However, the claims define the legal scope of patent protection.
Patent Infringement is Not Simply About Product Similarity
One of the most common misconceptions is that two products being visually or commercially similar automatically means that patent infringement has occurred.
That is not necessarily the case.
Patent infringement depends upon the scope of the patent claims and the technical features covered by those claims.
A product may look different but still potentially fall within the scope of a patent claim. Conversely, two products may look similar while differing in a technically significant way that takes the accused product outside the relevant claims.
This is why claim analysis and technical evidence are central to patent infringement disputes.
Patent Validity as a Defence to Infringement
A defendant in a patent infringement suit may not be limited to arguing that there is no infringement.
Under Section 107 of the Patents Act, 1970, the grounds on which a patent may be revoked under Section 64 are available as grounds of defence in an infringement proceeding.
This means that a defendant may challenge the validity of the patent where legally permissible.
Some grounds under Section 64 include:
- Lack of novelty;
- Lack of inventive step;
- Non-patentable subject matter;
- Insufficient disclosure;
- Wrongful obtaining;
- Failure to comply with statutory requirements; and
- Other grounds specified under the Patents Act.
Therefore, a patent infringement dispute can involve two separate but connected questions:
1. Has the defendant infringed the patent?
2. Is the patent itself legally valid and enforceable?
Important Case: Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries
The Supreme Court’s decision in Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511, is an important authority in Indian patent law.
The case addressed fundamental principles relating to novelty and inventive step and emphasised that a patentable invention must involve more than a mere routine workshop improvement.
The decision is relevant when considering challenges to patent validity and the standards applicable to patentability.
Remedies for Patent Infringement in India
Where patent infringement is established, Section 108 of the Patents Act, 1970 provides for important remedies.
The principal remedies include:
1. Injunction
An injunction can restrain the defendant from continuing the infringing activity.
Depending on the facts of the case, this may prevent activities such as:
- Manufacturing;
- Selling;
- Offering for sale;
- Using;
- Importing; or
- Other unauthorised exploitation covered by the patent rights.
An injunction may be temporary/interim during the proceedings or final after adjudication, depending on the circumstances and applicable procedural law.
2. Damages
A patentee may seek damages for losses resulting from infringement, subject to the applicable legal requirements.
The purpose of damages is generally to compensate the patentee for the loss caused by the infringement.
The assessment of damages can involve consideration of the circumstances of the infringement and the evidence relating to the loss suffered.
3. Account of Profits
Instead of damages, the patentee may, where applicable, seek an account of profits.
An account of profits focuses on the profits attributable to the infringing activity rather than simply calculating the loss suffered by the patentee.
The choice and availability of relief depend on the facts and applicable law.
4. Seizure, Forfeiture or Destruction
The court may also make appropriate orders concerning infringing goods or materials used for creating such goods, including their seizure, forfeiture or destruction, in accordance with the statutory framework.
These remedies can help prevent infringing products from continuing to enter the market.
Process Patent Infringement and Section 104A
Process patent disputes can create a unique evidentiary problem.
In a product patent case, the allegedly infringing product may be available for direct examination. However, determining which process is being used inside another company’s manufacturing facility can be considerably more difficult.
Section 104A of the Patents Act, 1970 contains special provisions relating to the burden of proof in certain process patent infringement cases.
The statutory mechanism can require the defendant to demonstrate that the process used to obtain a particular product is different from the patented process, subject to the conditions prescribed by the provision.
The burden-shifting mechanism does not apply automatically in every process patent dispute. Its statutory requirements must be satisfied.
Roche v. Cipla: Important Indian Patent Infringement Case
The dispute between F. Hoffmann-La Roche Ltd. and Cipla Ltd. is an important example of complex pharmaceutical patent litigation in India.
The dispute concerned Roche’s patent relating to erlotinib hydrochloride and involved questions concerning both patent validity and infringement.
The Delhi High Court proceedings addressed technical and legal questions surrounding the patent, the alleged infringing product and the relief sought by the patentee.
The case demonstrates why pharmaceutical patent litigation often requires detailed analysis of:
- Patent claims;
- Technical specifications;
- Prior art;
- Patent validity;
- Infringement;
- Expert evidence; and
- Appropriate relief.
Patent Infringement vs Patent Opposition
Patent infringement and patent opposition are different legal proceedings.
Patent Opposition
Patent opposition challenges a patent application or granted patent through the statutory opposition mechanism, particularly under Section 25 of the Patents Act.
Patent Infringement
Patent infringement proceedings generally concern unauthorised exploitation of a valid patent and seek remedies such as injunctions, damages or an account of profits.
Therefore:
Opposition → Challenge to grant or maintenance of patent rights
Infringement → Enforcement of patent rights against unauthorised use
Patent Infringement Litigation in India
A patent infringement lawsuit can involve several stages and legal issues.
A typical dispute may require:
Step 1: Patent Verification
The patentee should identify the relevant patent, its status, ownership and claims.
Step 2: Claim Analysis
The claims should be carefully examined to determine the precise scope of protection.
Step 3: Evidence Collection
Relevant technical, commercial and documentary evidence should be collected.
Step 4: Infringement Analysis
The accused product or process should be compared against the relevant patent claims.
Step 5: Validity Assessment
Potential validity challenges and Section 64 grounds should also be examined.
Step 6: Legal Proceedings
Depending on the facts, the patentee may initiate appropriate proceedings seeking injunction and other remedies.
Step 7: Evidence and Trial
Technical evidence, documents, expert evidence and claim construction may become important during the proceedings.
What Should a Patentee Do if a Patent is Infringed?
If a patentee believes that its patent is being infringed, it should first conduct a detailed legal and technical assessment.
Important steps may include:
- Verify that the patent is valid and in force;
- Review the complete patent specification and claims;
- Identify the allegedly infringing product or process;
- Collect technical evidence;
- Preserve product samples and relevant documents where legally appropriate;
- Compare the accused product/process with the patent claims;
- Assess potential validity challenges;
- Evaluate available remedies; and
- Consider appropriate legal proceedings.
A patent infringement claim should be based on evidence and claim analysis, rather than merely on commercial similarity.
Defences Available to a Defendant in Patent Infringement
A defendant may raise various defences depending on the facts of the case.
These may include:
- The accused product or process does not fall within the scope of the claims;
- The patent is invalid;
- The patent lacks novelty;
- The patent lacks inventive step;
- The subject matter is not patentable;
- The patent specification does not satisfy disclosure requirements;
- The alleged act falls outside the patentee’s statutory rights; and
- Other statutory or factual defences available under Indian law.
Section 107 is particularly important because it allows grounds for revocation under Section 64 to be raised as defences in an infringement action.
Conclusion
Patent infringement in India is governed by a combination of substantive patent rights, validity safeguards and judicial remedies.
Section 48 defines important exclusive rights of a patentee, while Section 107 provides significant defences based on grounds available for patent revocation. Section 108 sets out the principal remedies, including injunctions, damages and an account of profits.
Patent infringement is fundamentally a claim-based legal and technical inquiry. The fact that two products are commercially or visually similar does not by itself establish infringement. The allegedly infringing activity must fall within the legally enforceable scope of the claims of a valid patent.
For both patentees and defendants, effective patent litigation therefore requires careful claim construction, prior-art analysis, technical evidence, validity assessment and understanding of the available statutory remedies.