Patent infringement in India is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may usually be granted in the form of a license. The patent infringement may vary by jurisdiction, but it normally includes using or selling the patented invention. In several countries, a use is needed to be commercial to constitute patent infringement.
The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. In other words, the terms of the claims inform the public of what is not allowed without the permission of the patent holder. Patents are protective, and infringement is only possible in a country where a patent is in force. The scope of protection may vary from country to country, because the patent is examined by the patent office in each country and may have some difference of patentability, so that a granted patent is difficult to enforce worldwide.
Action of Infringement
Whenever the monopoly rights of the patentee are violated, his rights are secured again by the Act through judicial intervention. The patentee has to institute a suit for infringement. The relief's which may be awarded in such a suit are :
- Interlocutory/ interim injunction.
- Damages or account of profits.
- Permanent injunction.
Where a suit is to be instituted:
Section 104 of the Act provides that a suit for infringement shall not be instituted in any court inferior to a District Court having jurisdiction to try the suit. In appropriate cases where the High Court and District High Court has original jurisdiction to try the suit. The suit shall be instituted in the High Court. When an action for infringement has been instituted in a high court and District Court and the defendants make a counter claim for revocation of the patents, the suit is transferred to the High Court for decision because High Court has the jurisdiction to try cases of revocation. Section 104A provides for burden of proof in case of suits concerning infringement.
The process followed in conducting a suit for infringement is governed by the provisions of code of civil procedure:
When a suit can be instituted:
When patent has been sealed, then A suit for infringement can be instituted. When a specification has been accepted and published i.e., during the period when opposition has been called and is being decided, the applicants cannot institute a suit for infringement, but damages sustained due to the infringement, committed during the period i.e., between the date of publication of acceptance of complete specification and the date of grant may be claimed in another suit, a separate suit for damages but not suit for infringement.
When the term of the patent has expired and infringement has occurred during the term of the patent, a suit can be instituted during the term of even after the expiry of the term. In case a patent had lapsed and was next restored, committed between the date on which the patent ceased to have effect and the date of publication of application for restoration. When a patent was obtained wrongfully by a person and later granted to the true and first Inventor, no suit for infringement can be instituted for any infringement occurring before the period of such grant to the true and first inventor.
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