Concept of Patent Infringement at a glance 

by  Adv. Rupa K.N  




3 mins


Patent Infringement


  • An innovation-based patent is a legal document that specifies the invention and grants the patent holder the only authority to prevent anyone from creating, marketing, or disseminating the invention. 
  • Patent infringement is the illegal use of the patent holder’s exclusive rights. The government issues a patent for a set amount of time. 
  • This means that it would be deemed a violation of patent rights, and the person would be held responsible for it if the patentee’s rights were exercised by someone else without the patentee’s permission.

What is Patent Infringement?

What constitutes patent infringement is not specifically defined in the Patents Act of 1970. However, it specifies two types of actions that, if taken without the patent holder’s permission, would amount to patent infringement:

  • Using the patented process, or using, offering for sale, selling, or importing the product that is directly encompassed by that process
  • Using, selling, making, importing the patented product, or offering for sale.

    Unveil the nitigrities involved in Patent Infringement with Our Experts

What are the ways in which Patent Infringement can be prevented?

A few of the approaches to prevent patent infringement are described below:

  • Production of Unique Goods– Employers, can find staff members with the creativity and intelligence to produce unique items. To prevent employees from later claiming ownership of the idea, the corporation must remember to include a clause in the contract stating that the product developed is its sole property.
  • Acquiring the necessary licenses from Patent Owners– Companies and businesses should obtain authorization from the patent holder before using any registered material for further use if they don’t want to risk being held accountable for exploiting patented material. Online content that can be utilized without any restrictions is generally referred to as royalty-free media. But it is best to give due acknowledgment to the owner of those rights in order to prevent any patent infringements on their exclusive rights over that work.
  • Suit for Patent Infringement– The Patents Act of 1970 gives the patentee the ability to sue if his exclusive patent rights are violated. The Limitation Act stipulates that a lawsuit must be filed within three years of the patent infringement. 

Normally, it is the plaintiff’s responsibility to demonstrate that patent infringement has been done by the defendant; however, in some circumstances, the burden of proof may be decided by the court. In India, both districts and the high courts have the power to hear cases related to patent infringement. However, only the High Court has the authority to consider the matter if the defendant has filed a counterclaim for cancellation of the patent. The patentee can file the case in the place of his residence or the place where he carries out his business, or where the cause of action arises. Section 48 of the Patents Act 1970  contains the rights of the patentees. It lists some activities that constitute the infringement of the patentee’s rights:

  • Utilizing 
  • Importing 
  • Making Offers for Sale
  • Promoting the proprietary method

What are the remedies available to a Patentee in case of patent infringement?

The plaintiff is entitled to redress under Section 108(1) of the Patents Act of 1970 in case of patent infringement. The patentee’s available remedies are as follows:

  • Interlocutory/Temporary Injunction– At the beginning of the plaintiff’s lawsuit, the court requests a temporary injunction. This law was designed to stop the defendant from obtaining additional benefits by utilizing other patented goods. It is crucial for the patentee to demonstrate that the defendant has violated the patent and that it is legitimate in order to request a temporary injunction. Additionally, he has suffered irreparable loss as a result of the subsequent violation of his patent rights.
  • Permanent Injunction- When the court renders a verdict in the case, a permanent injunction is issued. If the defendant is found guilty of patent infringement, the temporary injunction becomes a permanent one. However, the temporary injunction is dissolved and does not become a permanent injunction if the defendant is released from liability.
  • Damages– If the defendant is found guilty, the plaintiff will either receive monetary damages or an accounting of the defendant’s earnings. If the defendant claims ignorance and establishes that he had no basis for suspecting that the allegedly infringing patent existed at the time of the infringement, damages may not be awarded to the plaintiff.

    Seek Expert Guidance and Explore the Implications of Patent Infringement

What defenses are available to the defendant in a suit for patent infringement?

In a lawsuit for patent infringement, the defendant may raise a number of defenses to exclude himself from liability.

  • When the accused disputes the infraction by demonstrating his lack of purpose.
  • If res judicata or estoppel apply.
  • When a plaintiff lacks legal standing to bring an infringement claim.
  • Whether the accused is in possession of an express or implicit license to use the patented product.
  • When a patent is revoked because it was obtained illegally.
  • In the case of pharmaceutical drugs/medicines, the government may continue to have the sole right to produce copyrighted goods for the benefit of the public.
  • In the event that the alleged infringement is plain to see and not new.

What are the exceptions to infringement?

The Patents Act’s Section 107A includes provisions for parallel imports and bolar imports:

  • Bolar clause: It allows pharmaceutical product producers the freedom to conduct research on a range of patented goods before releasing them onto the market for the benefit of the general population. However, this research won’t be useful until the patented product has run its course.
  • Parallel import provisions: This allows the person authorized by the patentee to import the product. This importation will not be regarded as a violation of the patentee’s rights. This implied that anyone in possession of a license might import patented goods without consulting the patentee, and this would not be considered an infringement. 

    Understanding Patent Infringement? - Consult Our Experts for more Insights


The goal of copyright is to uphold the creator’s legal rights while also offering financial incentives. It is important to always register your copyright to save it from infringement. To take the help of a  business lawyer in obtaining copyright.

A person who violates the copyright of another person’s work is subject to both criminal and civil penalties. However, there are several exceptions to copyright infringement, meaning that in some circumstances, a person may not need the copyright holder’s consent to utilize his work. However, it is always advisable to create unique content rather than unauthorized use of another person’s copyrighted work.

Patent Infringement is a very common practice followed in the pharmaceutical sector. It is the right & duty of the patentee to register & secure his invention before anyone infringes it. To know more about the concept of patent infringement, take the advice of an Intellectual Property Lawyer here.

Adv. Rupa K.N

Adv. Rupa K.N


5 | 277+ User Reviews

Advocate Rupa K.N, with over 24 years of independent practice, specialises in providing legal expertise, advice and guidance to a broad range of customers. Having been practising law independently for several years after doing her B.A. LLB from Bangalore University and PGDM from the National Institute of Personnel Management.

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