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Patent Infringement in India

This informative blog will inform you about the ins and outs of Patent Infringement in India so that you can get enlightened and keep in mind or help others when in need.

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Patent infringement concerning a patented innovation without prior consent from the patent holder is illegal to conduct in India. If necessary, a patent holder might issue approval in a license form. Patent infringement refers to the sale or use of the patented innovation, which varies by jurisdiction.

The demonstrated claims of the invention, in general, constitute the scope of the claimed invention or the level of protection necessary. To put it simply, the language of the claims notifies the public about what is not permitted without the patent owner’s consent.

Patents intend to be safeguarded, and patent infringement can occur only in countries where it is enforced. The breadth of protection differs from nation to nation since each patent office assesses the creation based on their laws and regulations, which fluctuate according to patentability principles.

Acts Constituting Patent Infringement 

The Patents Act (Section 48, 1970) allows the patentee the following rights:

In the event of a product patent, the following parts would constitute infringement: using, selling, producing, offering for sale, selling, or importing the product in India for these purposes without the patentee’s consent.

In the event of a method patent, the following parts would constitute infringement: selling, offering for sale, using, or importing. For these reasons, the creation derived directly from that procedure in India without the patentee’s authorisation would constitute infringement.

Any individual who engages in the activities mentioned above without the approval of the patentee infringes on the patent.


Patent Infringement: Types

Patent Infringements can be classified into two major classes, as detailed below:

  • Direct Infringement: it is the most evident and widespread sort of violation Infringement of this sort involves the promotion, sale, or commercial use of a copyrighted object or innovation that performs essentially equivalent duties. Direct infringement might be actual or figurative (also called: the doctrine of equivalents) when creation is similar (substantially) to a patented item or when commercial or market use is executed without authorising the creation’s owner.
  • Indirect Infringement: When infringement occurs, but the direct violation is enabled by someone else, indirect infringement. Indirect infringement is classified into two types: induction breach, in which an individual persuades another person to violate a patent by assisting, encouraging, inducing, or aiding them to do so. Contributory infringement occurs when one party intentionally participates/helps another individual breach the patent, making them liable for their actions.

Actions Not Constituting Patent Infringement

There exist specific actions that don’t constitute or result in patent infringement. According to Section 107A, the following conduct does not constitute patent infringement:

  • If an individual uses, creates, imports, or sells a patented innovation simply for uses associated with the submission and development of information needed by Indian law or any other nation that maintains the construction, manufacture, import, sale, or usefulness of any other nation product.
  • Importation of patented items by any individual from a person who the patentee legally authorised to sell, manufacture, and distribute the products.

As soon as the patent specifications are made public, third parties can use such information to execute experiments to develop further the patent (also known as the bolar provision).

Furthermore, it isn’t considered patent Infringement if the product (patented) is sourced from a nation by a party entitled to do so (also called: parallel imports).

Patent Infringement: Burden of Proof 

In any litigation for violation of a method patent, the defendant can be required to demonstrate that the procedure they employed to generate the creation that is similar to the item of the patented process differs from the patented process. The court may issue such a directive if the subject matter of the patent is a method for acquiring a new product or if there’s a likelihood that the process creates a similar outcome. The individual or the patentee deriving interest or title has not determined the procedure used despite reasonable efforts.

However, the plaintiff must first demonstrate that the product is similar to the product acquired directly through the patented procedure to get such a directive. 

Note: Damages are not awarded in patent violation cases.

Patent Infringement: Remedies

During the litigation, the patentee’s patent claim is being challenged for patentability and innovativeness. If the court is not satisfied with these factors, the patent applicant’s patent claim is denied by the Indian courts.

However, if the patentee establishes the patent right by laying three vital elements: irreplaceable injury, prima facie case, and balance of convenience, the court issues injunction orders to avert patent infringement. After that, appropriate remedies are implemented to safeguard the patent rights.

In the event of patent infringement, an action may be brought in the relevant court, which can be a High Court or a District Court. If a patent violation complaint is registered in a District Court and a defendant files a counterclaim, the patent infringement litigation is moved to a High Court.

In a patent infringement litigation, the claimant might seek an injunction, damages, or an order to account for profits from the putative patent violator. If the defendant establishes that, at the time of patent infringement, they were unaware of the patent and had no reasonable reasons to think that it existed, a damage or accounting order for profits is made.

As a result, the patentee should inform the general public that a patent protects his product or technique. Infringing items, materials, and equipment utilised in their manufacture can be confiscated, forfeited, or destroyed in an infringement claim. The courts may appoint scientific advisers to help the court or provide a specific subject report, either on their initiative or at the request of a party to the litigation. The Patents Act has no provision for criminal prosecution in the event of patent infringement.

Litigation Timetable

The statute of limitations for filing infringement litigation is three years from the exact date of patent infringement.

This average duration is projected to be shortened to one to two years under the High Courts Act 2015, Division and Commercial Appellate Division. India’s courts, particularly the High Court of Delhi, have expedited litigation in intellectual property cases. Because of the comparatively reduced possibilities of securing an interim injunction and the short length of exclusivity allowed under the patent regime, this trend of expedited litigation is becoming more widespread in patent litigation.

Patent litigation may be a costly and hazardous endeavour. Thus extreme caution must be used. Additionally, because it is feasible to analyse the likelihood of patent infringement, it is worthwhile to do so in advance, right at the outset of the new project.

However, in extreme cases, “essential patents” may be required to produce particular sorts of items or satisfy specific technological criteria. In such circumstances, one must act with caution and strategy, considering the options of asking permission to utilise such critical patents from the patent owner(s), circumventing the patent claims, or waiting for such patents to expire.

What Is the Cost to File a Patent Infringement Lawsuit? 

A typical range of expenses in a patent infringement complaint might be:

  • The filing of a claim will cost between $50k and $60k without counting court expenses and stamp duty, calculated based on the number of damages requested by the claimant.
  • In the trial period, the charge may vary from $1.5 million to $3 million based on the senior advocate retained and the intricacy of the case.
  • The cost of a claim to the Supreme Court ranges between $3.5 million and $6.5 million.

The costs mentioned above can change depending on the number of court appearances and case intricacy. The Bar Council of India forbids lawyers from charging their clients contingent fees or paying a part of the claims granted by the court.


Patents intend to be safeguarded, and patent infringement can occur only in countries where it is enforced. To put it simply, you should not copy someone else’s work without notifying them or taking consent. Hopefully, you are now acquainted with everything related to Patent Infringement in India.


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