{"id":587,"date":"2026-09-30T06:51:44","date_gmt":"2026-09-30T06:51:44","guid":{"rendered":"https:\/\/billionpreet.com\/blog\/?p=587"},"modified":"2026-09-30T06:51:44","modified_gmt":"2026-09-30T06:51:44","slug":"what-is-patent-infringement-in-india-rights-remedies-explained","status":"publish","type":"post","link":"https:\/\/billionpreet.com\/blog\/what-is-patent-infringement-in-india-rights-remedies-explained\/","title":{"rendered":"What is Patent Infringement in India? | Rights & Remedies Explained"},"content":{"rendered":"\n

Patent infringement in India<\/strong> 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.<\/p>\n\n\n\n

The primary provisions governing patent infringement and remedies in India are found in the Patents Act, 1970<\/strong>, particularly Sections 48, 64, 104, 104A, 107 and 108<\/strong>.<\/p>\n\n\n\n

Patent infringement disputes can involve complex questions of claim construction, prior art, patent validity, technical evidence, and the scope of the patented invention<\/strong>. Therefore, simply showing that two products appear similar is generally not enough to establish infringement.<\/p>\n\n\n\n

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What is Patent Infringement in India?<\/h1>\n\n\n\n

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.<\/p>\n\n\n\n

The specific acts that may constitute infringement depend upon whether the patent protects a product or a process<\/strong>.<\/p>\n\n\n\n

Under Section 48 of the Patents Act, 1970<\/strong>, the patentee has exclusive rights in relation to the patented invention, subject to the provisions of the Act.<\/p>\n\n\n\n

For a product patent<\/strong>, the patentee can prevent unauthorised third parties from:<\/p>\n\n\n\n

    \n
  • Making the patented product;<\/li>\n\n\n\n
  • Using the patented product;<\/li>\n\n\n\n
  • Offering it for sale;<\/li>\n\n\n\n
  • Selling it; or<\/li>\n\n\n\n
  • Importing it into India.<\/li>\n<\/ul>\n\n\n\n

    For a process patent<\/strong>, the patentee can prevent unauthorised use of the patented process and certain dealings with a product obtained directly through that process.<\/p>\n\n\n\n

    \n\n\n\n

    Rights of a Patentee Under Section 48<\/h1>\n\n\n\n

    Section 48 is one of the most important provisions concerning the rights of a patentee in India<\/strong>.<\/p>\n\n\n\n

    The precise scope of protection depends upon the claims of the patent.<\/p>\n\n\n\n

    Product Patent<\/h3>\n\n\n\n

    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.<\/p>\n\n\n\n

    Process Patent<\/h3>\n\n\n\n

    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.<\/p>\n\n\n\n

    Therefore, the rights of a patentee are determined by the scope of the patent claims<\/strong>, rather than merely by the general description of the invention.<\/p>\n\n\n\n

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    Does Owning a Product Give You Patent Rights?<\/h1>\n\n\n\n

    No.<\/p>\n\n\n\n

    Ownership of a physical product does not automatically give a person the right to commercially exploit a patented invention incorporated into that product.<\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    Patent rights arise from the patent grant and the scope of its claims<\/strong>, subject to the applicable statutory limitations.<\/p>\n\n\n\n

    \n\n\n\n

    How is Patent Infringement Determined?<\/h1>\n\n\n\n

    Patent infringement is primarily a claim-construction and comparison exercise<\/strong>.<\/p>\n\n\n\n

    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.<\/p>\n\n\n\n

    The analysis may involve:<\/p>\n\n\n\n

      \n
    1. Identifying the relevant patent claims;<\/li>\n\n\n\n
    2. Construing the meaning and scope of those claims;<\/li>\n\n\n\n
    3. Identifying the features or elements required by the claims;<\/li>\n\n\n\n
    4. Examining the accused product or process;<\/li>\n\n\n\n
    5. Comparing the accused product or process with the claimed invention; and<\/li>\n\n\n\n
    6. Determining whether the accused activity falls within the scope of the patent.<\/li>\n<\/ol>\n\n\n\n

      The patent specification may assist the court in understanding and construing the claims. However, the claims define the legal scope of patent protection<\/strong>.<\/p>\n\n\n\n

      \n\n\n\n

      Patent Infringement is Not Simply About Product Similarity<\/h1>\n\n\n\n

      One of the most common misconceptions is that two products being visually or commercially similar automatically means that patent infringement has occurred.<\/p>\n\n\n\n

      That is not necessarily the case.<\/p>\n\n\n\n

      Patent infringement depends upon the scope of the patent claims<\/strong> and the technical features covered by those claims.<\/p>\n\n\n\n

      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.<\/p>\n\n\n\n

      This is why claim analysis and technical evidence<\/strong> are central to patent infringement disputes.<\/p>\n\n\n\n

      \n\n\n\n

      Patent Validity as a Defence to Infringement<\/h1>\n\n\n\n

      A defendant in a patent infringement suit may not be limited to arguing that there is no infringement.<\/p>\n\n\n\n

      Under Section 107 of the Patents Act, 1970<\/strong>, the grounds on which a patent may be revoked under Section 64 are available as grounds of defence in an infringement proceeding.<\/p>\n\n\n\n

      This means that a defendant may challenge the validity of the patent where legally permissible.<\/p>\n\n\n\n

      Some grounds under Section 64 include:<\/p>\n\n\n\n

        \n
      • Lack of novelty;<\/li>\n\n\n\n
      • Lack of inventive step;<\/li>\n\n\n\n
      • Non-patentable subject matter;<\/li>\n\n\n\n
      • Insufficient disclosure;<\/li>\n\n\n\n
      • Wrongful obtaining;<\/li>\n\n\n\n
      • Failure to comply with statutory requirements; and<\/li>\n\n\n\n
      • Other grounds specified under the Patents Act.<\/li>\n<\/ul>\n\n\n\n

        Therefore, a patent infringement dispute can involve two separate but connected questions:<\/p>\n\n\n\n

        1. Has the defendant infringed the patent?<\/strong><\/p>\n\n\n\n

        2. Is the patent itself legally valid and enforceable?<\/strong><\/p>\n\n\n\n

        \n\n\n\n

        Important Case: Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries<\/h1>\n\n\n\n

        The Supreme Court’s decision in Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511<\/strong>, is an important authority in Indian patent law.<\/p>\n\n\n\n

        The case addressed fundamental principles relating to novelty and inventive step<\/strong> and emphasised that a patentable invention must involve more than a mere routine workshop improvement.<\/p>\n\n\n\n

        The decision is relevant when considering challenges to patent validity and the standards applicable to patentability.<\/p>\n\n\n\n

        \n\n\n\n

        Remedies for Patent Infringement in India<\/h1>\n\n\n\n

        Where patent infringement is established, Section 108 of the Patents Act, 1970<\/strong> provides for important remedies.<\/p>\n\n\n\n

        The principal remedies include:<\/p>\n\n\n\n

        1. Injunction<\/h3>\n\n\n\n

        An injunction can restrain the defendant from continuing the infringing activity.<\/p>\n\n\n\n

        Depending on the facts of the case, this may prevent activities such as:<\/p>\n\n\n\n

          \n
        • Manufacturing;<\/li>\n\n\n\n
        • Selling;<\/li>\n\n\n\n
        • Offering for sale;<\/li>\n\n\n\n
        • Using;<\/li>\n\n\n\n
        • Importing; or<\/li>\n\n\n\n
        • Other unauthorised exploitation covered by the patent rights.<\/li>\n<\/ul>\n\n\n\n

          An injunction may be temporary\/interim during the proceedings or final after adjudication, depending on the circumstances and applicable procedural law.<\/p>\n\n\n\n

          \n\n\n\n

          2. Damages<\/h3>\n\n\n\n

          A patentee may seek damages<\/strong> for losses resulting from infringement, subject to the applicable legal requirements.<\/p>\n\n\n\n

          The purpose of damages is generally to compensate the patentee for the loss caused by the infringement.<\/p>\n\n\n\n

          The assessment of damages can involve consideration of the circumstances of the infringement and the evidence relating to the loss suffered.<\/p>\n\n\n\n

          \n\n\n\n

          3. Account of Profits<\/h3>\n\n\n\n

          Instead of damages, the patentee may, where applicable, seek an account of profits<\/strong>.<\/p>\n\n\n\n

          An account of profits focuses on the profits attributable to the infringing activity rather than simply calculating the loss suffered by the patentee.<\/p>\n\n\n\n

          The choice and availability of relief depend on the facts and applicable law.<\/p>\n\n\n\n

          \n\n\n\n

          4. Seizure, Forfeiture or Destruction<\/h3>\n\n\n\n

          The court may also make appropriate orders concerning infringing goods or materials used for creating such goods, including their seizure, forfeiture or destruction<\/strong>, in accordance with the statutory framework.<\/p>\n\n\n\n

          These remedies can help prevent infringing products from continuing to enter the market.<\/p>\n\n\n\n

          \n\n\n\n

          Process Patent Infringement and Section 104A<\/h1>\n\n\n\n

          Process patent disputes can create a unique evidentiary problem.<\/p>\n\n\n\n

          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.<\/p>\n\n\n\n

          Section 104A of the Patents Act, 1970<\/strong> contains special provisions relating to the burden of proof in certain process patent infringement cases.<\/p>\n\n\n\n

          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.<\/p>\n\n\n\n

          The burden-shifting mechanism does not apply automatically in every process patent dispute. Its statutory requirements must be satisfied.<\/p>\n\n\n\n

          \n\n\n\n

          Roche v. Cipla: Important Indian Patent Infringement Case<\/h1>\n\n\n\n

          The dispute between F. Hoffmann-La Roche Ltd. and Cipla Ltd.<\/strong> is an important example of complex pharmaceutical patent litigation in India.<\/p>\n\n\n\n

          The dispute concerned Roche’s patent relating to erlotinib hydrochloride<\/strong> and involved questions concerning both patent validity and infringement<\/strong>.<\/p>\n\n\n\n

          The Delhi High Court proceedings addressed technical and legal questions surrounding the patent, the alleged infringing product and the relief sought by the patentee.<\/p>\n\n\n\n

          The case demonstrates why pharmaceutical patent litigation often requires detailed analysis of:<\/p>\n\n\n\n

            \n
          • Patent claims;<\/li>\n\n\n\n
          • Technical specifications;<\/li>\n\n\n\n
          • Prior art;<\/li>\n\n\n\n
          • Patent validity;<\/li>\n\n\n\n
          • Infringement;<\/li>\n\n\n\n
          • Expert evidence; and<\/li>\n\n\n\n
          • Appropriate relief.<\/li>\n<\/ul>\n\n\n\n
            \n\n\n\n

            Patent Infringement vs Patent Opposition<\/h1>\n\n\n\n

            Patent infringement and patent opposition are different legal proceedings.<\/p>\n\n\n\n

            Patent Opposition<\/h3>\n\n\n\n

            Patent opposition challenges a patent application or granted patent through the statutory opposition mechanism, particularly under Section 25 of the Patents Act<\/strong>.<\/p>\n\n\n\n

            Patent Infringement<\/h3>\n\n\n\n

            Patent infringement proceedings generally concern unauthorised exploitation of a valid patent and seek remedies such as injunctions, damages or an account of profits.<\/p>\n\n\n\n

            Therefore:<\/p>\n\n\n\n

            Opposition \u2192 Challenge to grant or maintenance of patent rights<\/strong><\/p>\n\n\n\n

            Infringement \u2192 Enforcement of patent rights against unauthorised use<\/strong><\/p>\n\n\n\n

            \n\n\n\n

            Patent Infringement Litigation in India<\/h1>\n\n\n\n

            A patent infringement lawsuit can involve several stages and legal issues.<\/p>\n\n\n\n

            A typical dispute may require:<\/p>\n\n\n\n

            Step 1: Patent Verification<\/h3>\n\n\n\n

            The patentee should identify the relevant patent, its status, ownership and claims.<\/p>\n\n\n\n

            Step 2: Claim Analysis<\/h3>\n\n\n\n

            The claims should be carefully examined to determine the precise scope of protection.<\/p>\n\n\n\n

            Step 3: Evidence Collection<\/h3>\n\n\n\n

            Relevant technical, commercial and documentary evidence should be collected.<\/p>\n\n\n\n

            Step 4: Infringement Analysis<\/h3>\n\n\n\n

            The accused product or process should be compared against the relevant patent claims.<\/p>\n\n\n\n

            Step 5: Validity Assessment<\/h3>\n\n\n\n

            Potential validity challenges and Section 64 grounds should also be examined.<\/p>\n\n\n\n

            Step 6: Legal Proceedings<\/h3>\n\n\n\n

            Depending on the facts, the patentee may initiate appropriate proceedings seeking injunction and other remedies.<\/p>\n\n\n\n

            Step 7: Evidence and Trial<\/h3>\n\n\n\n

            Technical evidence, documents, expert evidence and claim construction may become important during the proceedings.<\/p>\n\n\n\n

            \n\n\n\n

            What Should a Patentee Do if a Patent is Infringed?<\/h1>\n\n\n\n

            If a patentee believes that its patent is being infringed, it should first conduct a detailed legal and technical assessment.<\/p>\n\n\n\n

            Important steps may include:<\/p>\n\n\n\n

              \n
            • Verify that the patent is valid and in force;<\/li>\n\n\n\n
            • Review the complete patent specification and claims;<\/li>\n\n\n\n
            • Identify the allegedly infringing product or process;<\/li>\n\n\n\n
            • Collect technical evidence;<\/li>\n\n\n\n
            • Preserve product samples and relevant documents where legally appropriate;<\/li>\n\n\n\n
            • Compare the accused product\/process with the patent claims;<\/li>\n\n\n\n
            • Assess potential validity challenges;<\/li>\n\n\n\n
            • Evaluate available remedies; and<\/li>\n\n\n\n
            • Consider appropriate legal proceedings.<\/li>\n<\/ul>\n\n\n\n

              A patent infringement claim should be based on evidence and claim analysis<\/strong>, rather than merely on commercial similarity.<\/p>\n\n\n\n

              \n\n\n\n

              Defences Available to a Defendant in Patent Infringement<\/h1>\n\n\n\n

              A defendant may raise various defences depending on the facts of the case.<\/p>\n\n\n\n

              These may include:<\/p>\n\n\n\n

                \n
              • The accused product or process does not fall within the scope of the claims;<\/li>\n\n\n\n
              • The patent is invalid;<\/li>\n\n\n\n
              • The patent lacks novelty;<\/li>\n\n\n\n
              • The patent lacks inventive step;<\/li>\n\n\n\n
              • The subject matter is not patentable;<\/li>\n\n\n\n
              • The patent specification does not satisfy disclosure requirements;<\/li>\n\n\n\n
              • The alleged act falls outside the patentee’s statutory rights; and<\/li>\n\n\n\n
              • Other statutory or factual defences available under Indian law.<\/li>\n<\/ul>\n\n\n\n

                Section 107 is particularly important because it allows grounds for revocation under Section 64 to be raised as defences in an infringement action.<\/p>\n\n\n\n

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