A Critical analysis on patent infringement and Enforcement of India

A Critical Analysis on Patent Infringements and

Enforcement of India
Swaathi B1, Meera Annie Koshy2

Abstract

Among the intellectual property rights, this circumstance is especially valid in the area of
patent.
Introduction: In India the patent enactment is administered by the Patent Act, 1970. The 1970
Patent Act was a result of different previous existing patent enactments including the Patents
and Designs Protection Act, 1872, the Protection of Inventions Act, 1883. The Patent Act, 1970
accommodates the enforcement of patent by method for suits for infringement. In managing
these suits, the Indian Courts take after the conventional standards and systems of civil
litigation. In any case, after the coming into power of the TRIPs Agreement from 1995 different
techniques have been embraced by the lawmakers to enhance the implementation measures as
to patents .A invention can be utilised whenever the Application of patent isrecorded or after
the patent is allowed by the ‘Central Government’ or by any ‘ authorised person”. The patent
product may be imported or made by or behalf of the government. Similarly the licensed
procedure might be utilised by or in the interest of the legislature for its own utilization. As
Indian Patent Act, 1970 does not specifically mentioned about the infringement of patents.
Aim of Research: This research elaborates on patent infringement measures in India, TRIPS
(Trade-Related Aspects of Intellectual Property Rights) Agreement and comparison with IPA,
relevant cases on infringement and enforcement of patent in India and Patent enforcement and
litigation in India.
Conclusion: To strengthen the requirement and litigation system effective, it is recommended
that India should actualise a dynamic court driven IP Enforcement system.

Keywords: Patent in India, Infringement, Enforcement, TRIPS, Government, Intellectual

Property Act, License.

1
III year BBA, LLB( Hons) Saveetha Institution of Medical and a Technical Sciences, Saveetha School of Law, India;
Email:Swaathi.rj@gmail.com
2
Assistant Professor of law, e-mail Id : Meeraanniekoshy@gmail.comSaveetha school of law, Saveetha Institution of Medical and
Technical Sciences

Page 1 of 15
 A Critical analysis on patent infringement and Enforcement of India

Introduction
3
The word 'Patent' is used to signify a set of exclusive rights to be utilised or monetised with
respect to an invention. Patent is a concede made by the administrative authority to a inventor,
assigning and confirming him the suitable rights to make, utilise and sell his innovation for a
term of 20 years. Patent is allowed if the innovation is new and useful. Patent are jurisdictional
rights and are subsequently confined to a country that permits the patent. The utilization or
exploitation of a patent might be affected because of a conflict with different laws of nations
which have not granted the patent. The law identifying with acknowledgment and Enforcement
of patent rights in India is primarily governed by the Patents Act 1970('the Act') and the
principles issued under the Act. The Act has been sustainable amended by the Patents
(Amendment) Act 2005 so as to bring the Indian patent regime into line with the Agreement
on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPs). The Indian Patents
(Amendment) Act, 2005 provided the the launch of product patent in India and proclaimed
the start of new patent administration went for ensuring the protected intellectual property of
patent holders.Patent Infringement occurs when an unauthorised person or business "makes,
uses, or sells" a patented invention. The language of the Patent allows the patent owner to
prohibit this action. Because the right conveyed by a Patent is the right to prohibit a certain
action related to the invention, most patent infringement occurrences must be settled by filing
a suit against the party who is violating the Patent rights. The typical intellectual property
infringement suit involves allegations of free-riding on a trademark, trading on another’s
goodwill, misappropriation of an invention or literary work, or other unfair competition.

3
Anubhav Pandey, April 21.2017on iPleader

Page 2 of 15
 A Critical analysis on patent infringement and Enforcement of India

Objectives
 To study Enforcement on Patent in India
 To Analyse the infringement on patent with its types
 To find relevant case laws in India on patent’s infringement

Research Methodology

The researcher has followed a doctrinaire method of research. The project is descriptive and
clear in nature. Primary resource such as, the Patent Act 1970 have been utilised. Other than
this, auxiliary assets have been alluded to. A large group of driving reading material on and
also relevant articles from leading Law Journals have been alluded to. Case relevant like
Supreme Court Cases, All England Law Reports, and All India Reporter have been utilised.

Page 3 of 15
 A Critical analysis on patent infringement and Enforcement of India

Sources of development of Patent Law:

India has improvised in patent law administration with utilization of different wellsprings of
law i.e. by adoption of standards of universal law, establishing the principles to set down
through worldwide with prescribed procedures in IPR and through continuous refinement of
domestic statutory laws and judicial decisions. Court decides are important sources of patent
law in India. Indian courts additionally depend on decisions of both European and US courts
as sources of patent law.

4
In recent years, Indian courts have decided on a number of substantive patent law issues including,

 Infringement (Merck Sharpe and Dohme Corporation v Glenmark (CS(OS) 586/2013

judgment dated 7 October 2015); F Hoffman La Roche v Cipla Ltd. (RFA(OS) 92/2012,
judgment dated 27 November 2015));

 Patentability (Novartis v Union of India ((2013) 6 SCC 1); Merck Sharpe and Dohme
Corporation v Glenmark (supra); F. Hoffman La Roche v Cipla Ltd. (supra));

 Fair, reasonable and non-discriminatory licensing (Telefonaktiebolaget LM Ericsson v Intex

Technologies (Cs(Os) No.1045/2014, judgment dated 13 March 2015);

 Telefonaktiebolaget LM Ericsson v M/s Best IT World (India) Pvt Ltd (iBall)). (CS
(OS)2501/2015, judgment dated 2 September 2015)).

4
Ibid P.2

Page 4 of 15
 A Critical analysis on patent infringement and Enforcement of India

Enforcement of Patents
Indian Patent Office (IPO)

The IPO analyses patent applications and grants them in the event that they fit in with Indian
patent laws. It additionally keeps up records of renewal and working of patents. The IPO
problems related to grant of patent and post-concede restrictions. The key authoritative
functions of the IPO incorporate formulating and implementing guidelines and procedures.

IP Appellate Board (IPAB)

In April 2007, the IPAB ended up plainly operational to hear patent related disputes in the
nation. It is equal to the Indian High courts. It hears revocation procedures and the interests
emerging out of choices of the controller of licenses. The IPAB has specialised and legal
experts to deal with IP matters.

District courts and High courts

The Indian district courts are the first legal machinery (settling body) which can hear cases
concerning patent infringement as suits. The Indian High courts hear and settle on the interests
emerging out of the decisions of the district courts.

Supreme Court

The Supreme Court of India hears and chooses appeals against the decides of the IPAB and the
High Courts. Since, Supreme Court is the most important court of appeal, the choice of
Supreme Court is final and is not appealable.

Civil proceedings

Patent infringement is the unauthorised fabricating, utilizing, offering available to be

purchased, offering any patented invention in India, or bringing in into India of any patented
creation durning the term of a patent.

Patent infringement procedures appear as a civil suit organized under the steady gaze of a
common court practicing its unique purview. A patent holder can begin common procedures
when trying to implement its rights. No Criminal procedures for patent infringement can't be
established under the Patents Act 1970.

Under the Patents Act 1970, the District Court is the court of first line for patent infringement
activities. Patent infringement problems in India begins with a suit that an offended party files
in the District Court, which is followed by an answer to the suit by the defendant. In this way,
a hearing is held in the District Court, with consideration evidence logical specialists
declaration, proclamations of the witness and so on. In the of considerations the resistances
put by respondents the District Court chooses the disputes and awards the damages or
recommends the punishments, provided the encroachment is found. If the plaintiff or defendant

Page 5 of 15
 A Critical analysis on patent infringement and Enforcement of India

is not satisfied with the given judgement then such person can go for an appeal to High Courts
or Supreme Courts.

Injunction

A directive is an impartial cure as a court arrange, whereby a gathering is required to do, or to

avoid doing, certain demonstrations. An order might be preparatory or lasting. A preparatory
directive is a temporary cure conceded to control movement of a litigant on a transitory premise
until the point that the Court can settle on a ultimate conclusion after trial and a changeless
order is one which is allowed after the trial. Preparatory (transitory or between time) directive
and changeless order are given under Order 39, Rule 1-2 of Code of Civil Procedure, 1908.

For the court to arrange an order, the offended party needs to satisfy the accompanying criteria,

Build up his case just at an at first sight level, i.e., the offended party needs to demonstrate that
he can possibly succeed and that his claim isn't vexatious;

Show unsalvageable damage if a brief order isn't conceded; and

Show that the adjust of comfort is agreeable to the offended party (i.e. the offended party will
be more hindered in light of the non-give of the directive that the litigant will be impeded in
view of the give of one).

Changeless order is conceded simply after the trial when the Court reasons that the litigant's
item encroaches the patent of the offended party.

Patent Infringement in India

Infringement of Patent
Requirement of patent rights and managing patent infringement can be complex now
and again. The Indian Patent Act, in its Chapter XVIII deals the arrangements for
infringement of licenses and suits relating thereto. Some of such provisions of the Act
are definite as under:

What constitutes infringement of Patent in India?5

Patent allow an exclusive rights to its holder to make, utilise, offer, permit or allot, his
patented creation. Section 48 of the Act presents the privilege upon the patentee to
exclude and stop third parties who don't have his consent from any demonstration of:
making, utilizing, offering available to be purchased or bringing in for those reasons the
patent item or the item acquired by the patented procedure in India.

5
S.S RANA & Co advocates

Page 6 of 15
 A Critical analysis on patent infringement and Enforcement of India

Such exercises can be considered to infringe a patent.

Page 7 of 15
 A Critical analysis on patent infringement and Enforcement of India

Types of Infringement6
The different types of patent infringement happen when a persons or business utilizes
parts patented concept, technique, or gadget without permission. Patent infringement is
otherwise called patent infringement or even stolen ideas. It could include either
utilizing or offering the patented innovation or thought. Before you can sue somebody
for patent infringement, you should make sense of who is to fault. It's not generally as
clear as you may think. Understanding the diverse sorts of patent infringement figures
out who is accountable.

Direct Infringement

Making, utilizing, selling, endeavouring to sell, or importing in something without

getting a permit from the patent holder is viewed as immediate patent infringement. The
guilty party must complete this act wilfully and within the United States.

Indirect Infringement

Indirect infringement incorporates contributory Infringement and to encroach a patent.

Under these terms, regardless of the possibility that an organization isn't the one that
initially infringement on the patent, that company can in any case be considered
responsible for patent Infringement .

6
https://www.upcounsel.com/types-of-patent-infringement

Page 8 of 15
 A Critical analysis on patent infringement and Enforcement of India

Contributory Infringement

This sort of infringement includes the buy or importation of a part that guides in creating
a protected thing. To demonstrate contributory infringement, one must demonstrate that
the components main utilize is make a patented thing. A generic thing that has different
uses for the most part doesn't qualify in proving contributory infringement

Induced infringement
This happens when a person or company helps in patent infringement by giving
components or making a patented item. It happens through offering directions,
preparing for guidelines, or authorizing plans or procedures.

Wilful Infringement

Wilful Infringement exists when a persons shows complete ignore for another person's
patent. Wilful Infringement is particularly harming to defendant in a common suit. The
punishments are substantially higher, and commonly respondents must pay all lawyer
and court costs on the off chance that they are found liable.

Strict Infringement

To prove strict infringement, there must be an immediate correspondence between the

infringing gadget or process and the patented gadget or process.

Pharma Patent Infringement Cases in India

The below table provides patent infringement cases in India with respect to Pharma:

Page 9 of 15
A Critical analysis on patent infringement and Enforcement of India

Page 10 of 15
 A Critical analysis on patent infringement and Enforcement of India

Case Laws on Patent Infringement

1. Bajaj Auto Limited Vs TVS Motors Company Ltd
This case involves the controversy with respect to the unapproved application of the
patent of the DTSi Technology. The case turned out to be very with respect to the
financial stakes of the gatherings as well as in regards to the use of the precept of essence
and marrow likewise named as Doctrine of Equivalents.
This case was filed under the Madras High Court in 2007. The offended parties (Bajaj
Auto Ltd), alongside the state of Maharashtra professed the defendant (T.V.S. Engine
Company Ltd.) of infringement of the patent of the offended parties, which captured
the innovation technology of advanced internal combustion engine.The case connected
with the inquiries of patent infringement by the defendant and the damages for the same.
Moreover, the case threw light upon the contention on the risk issued by the defendant
of a similar case.
The Supreme Court of India judgement directed in the courts of India for expedient trial
and transfer of intellectual property related cases. In this two-year-old disputes
including two organizations, which had been secured a patent dispute regarding the
utilization of a twin-spark plug motor innovation, the Supreme Court observed that
suits identifying with the issues of patent, trademarks and copyrights are pending for a
considerable length of time and years and case is fundamentally Fought between the
parties about the temporary order. The Supreme Court coordinated that hearing in the
intellectual property matters ought to continue on everyday premise and the final
judgment ought to be given typically inside four months from the date of the filing of
the suit. The Supreme Court additionally coordinated to every one of the courts and
tribunals in the nation to punctually and faithfully carry out the aforesaid orders.

Page 11 of 15
 A Critical analysis on patent infringement and Enforcement of India

Provision of Enforcement and Litigation under TRIPS Agreement and

Patent Act
The provisions of the TRIPS Agreement essentially define the objective to be attained
rather than the specific details of the procedures that may be incorporated by member
countries. Part III of the TRIPS Agreement includes general obligations, rules on civil
and administrative procedures and remedies to fulfil the general obligations, provisional
measures, special requirements related to border measures, and criminal procedures.
Article 41 sets out the main principles regarding enforcement. India asserts that its 2005
amendments brought its patent laws into full compliance with TRIPS. These
amendments have had dramatic effects. The Patents Act, 1970 provides under Chapter
XVIII ‘Suits Concerning Infringement of Patents’ and under Chapter XIX ‘Appeals’.
Under the former, sections 104 to 115 deal with different issues related to jurisdiction,
declaration as to non-infringement, cases of groundless threats of infringement
proceedings, defences in suits for infringement, reliefs in suits for infringement, rights
of exclusive licensees, damages, injunctions, certificate of validity, partially valid
specification, and scientific advisers. The latter chapter deals with appeals, which are
filed in a High Court. The provisions which are most often used are related to the
declaration as to non-infringement in section 105 and the power of the court to grant
relief in cases of groundless threats of infringement proceedings in section 106.

Page 12 of 15
 A Critical analysis on patent infringement and Enforcement of India

Recommendation and Conclusion :

The effectiveness of methods for authorisation of patent is more than guaranteeing
theintellectual property rights are respected. The Obligation under the TRIPS
Agreement is presently being generally implemented in national legislation of the
member state of the WTO. Most nations execute different methods and solutions for
intellectual property implementation. However, intellectual property right proprietors,
particularly multinational organizations which make large investment in innovative
work, advancement, continually demand advance government-drove endeavours for
strengthening intellectual property innovation right insurance. Creating nations like
India are confronting expanded pressure from created nations to build their endeavours
on the implementation of IPR. India needs to enhance its requirement record to a level
that potential pioneers trust that the general population will regard their IPRs whether
intentionally or inspired by a paranoid fear of authority authorisation. In any case, there
are existing difficulties which India needs to explore, with respect to authorisation, the
significant issue being legal postponements. There is an insufficiency of the
authorisation hardware bringing about moderate legal process.

To strengthen the requirement and Enforcement system effective, it is recommended

that India should actualise a dynamic court driven IP Enforcement System. The goal is
to guarantee that IP problems can be managed sophisticated way utilizing an assortment
of procedural devices; the legitimate costs included can altogether be all around
diminished and that the question can well be decreed with a sensible time span (not as
much as a year). Despite the fact that foundation of tribunal courts is a shelter and looks
to speed up the determination of IP question, there is as yet a major excess of extensive
cases and full execution is a test. Regardless of the many-sided quality or the idea of
the case, this system can guarantee powerful arbitration of IP disputes which can be
dealt with by experts with fairness and equity.

References

Page 13 of 15
 A Critical analysis on patent infringement and Enforcement of India

o https://www.google.co.in/search?rlz=1C9BKJA_enIN652IN652&hl=en-
GB&q=patent+infringement+cases+india&sa=X&ved=0ahUKEwjoh9DFw83
XAhUP2o8KHSFaCwwQ1QIIVigB&biw=1024&bih=748
o https://blog.ipleaders.in/patent-enforcement/amp/
o http://www.ssrana.in/Intellectual%20Property/Patents/Patent-Enforcement-
Flowchart-in-India.aspx
o www.ipedr.com/vol45/002-ICMTS2012-C00066.pdf
o https://www.upcounsel.com/types-of-patent-infringement
o http://www.talwaradvocates.com/landmark-judgements-patent-law/
o http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch4.pdf
o https://www.furmanip.com/ip-law/patents/patent-enforcement/
o http://www.mondaq.com/india/x/406950/Trademark/Enforcement+Of+Intellect
ual+Property+Laws+In+India by Vijay pal Malia and Pavit Singh Katoch, dated
30 June, 2015
o http://corporatelawreporter.com/2016/12/14/patent-infringement/ by Azeem
RasicNabi, dated on Dec 14, 2016
o https://www.legalmatch.com/law-library/article/types-of-patent-
infringement.html
o Consequences of Patent infringement in India by Intepat Team dated on 30 Aug
2017
o https://jashvaidya.wordpress.com/2015/11/26/patent-infringement-in-india/ by
Indian Vakil dated on November 26,2015
o http://www.generalpatent.com/different-types-patent-infringement-0
o https://www.squirepattonboggs.com/~/media/files/insights/publications/2013/1
1/civil-and-criminal-remedies-for-intellectual-
pro__/files/civilandcriminalremedies/fileattachment/civilandcriminalremedies.
pdf
o http://www.theipcenter.com/2008/05/remedies-for-patent-infringement/
Posted on May 23, 2008 by Arthur
o Balwant Rawat, an article on Patent dispute resolution systems in India.
o The Times of India, SC notices to Centre, Pharma Companies on Novartis Petition, 11
September 2009, http;//
articles.timesofindia.indiatimes.com/2009-09-11

Page 14 of 15
 A Critical analysis on patent infringement and Enforcement of India

o The Patents (Amendment) Act, s. 5, Acts of Parliament, 2005 (India)

o History ofIndian Patent System, http://www.patentoffice.nic.in/ipr/patent/history.htm,
available at http://www.patentoffice.nic.in/ipr/patent/manual-2052005.pdf.

o http://www.patentoffice.nic.in/ipr/patent/manual-2052005.pdf

Page 15 of 15