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 if the patentee’s rights were exercised by someone else without the patentee’s permission, it would be deemed a violation of patent rights, and the person would be held responsible for it.

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.

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Types of Patent Infringement

Patent Infringement in India, governed by the Indian Patents Act, 1970, occurs when a patented invention is used, made, sold, or offered for sale without the patent holder’s permission. Here are the types of patent infringement relevant to Indian laws, integrating both general definitions and specific Indian contexts:

  1. Direct Infringement:
    • Definition: This occurs when a product or process identical to the patented invention is made, used, sold, or offered for sale without authorization.
    • Under Section 48 of the Indian Patents Act, patentees have exclusive rights to prevent third parties from performing these acts. Direct infringement is a clear violation of these exclusive rights.
  2. Indirect Infringement:
    • Definition: This includes contributory infringement and induced infringement.
      • Contributory Infringement: Occurs when a party provides components used to infringe a patent, knowing that these components are specially made or adapted for such use.
      • Induced Infringement: Involves encouraging or aiding another party to infringe a patent, with knowledge of the patent and intent to cause the infringing acts.
    • Although not explicitly defined in the Indian Patents Act, Indian courts have acknowledged and addressed these forms of infringement through various judgments.
  3. Literal Infringement:
    • Definition: Occurs when the infringing product or process exactly matches the language of the patent claims. Every element of the patent claim is found in the accused product or process.
    • Determined based on whether the accused product or process falls within the scope of the granted patent claims.
  4. Doctrine of Equivalents:
    • Definition: Infringement occurs when a product or process does not literally infringe on the patent claims but performs substantially the same function in substantially the same way to achieve the same result.
    • Though not explicitly mentioned in the Indian Patents Act, Indian courts have considered this doctrine to determine infringement, focusing on functional and result-oriented equivalence.
  5. Willful Infringement:
    • Definition: Occurs when an infringer knowingly violates a patent with reckless disregard for the patent holder’s rights, potentially leading to enhanced damages.
    • While not specifically addressed in Indian law, willful infringement can influence the court’s decision on awarding higher damages and strengthening the patentee’s case.
  6. Equivalent Infringement:
    • Definition: Involves using a technology or process that is not identical to the patent claims but performs the same function in the same way to achieve the same result.
    • Indian courts have applied the doctrine of equivalents, ensuring slight variations achieving the same result do not escape infringement liability.

Understanding these types of patent infringement within the Indian legal framework helps patent holders protect their intellectual property effectively and take appropriate legal action when necessary.

The Indian Patents Act, along with judicial interpretations, provides a robust structure to address various forms of infringement, balancing the rights of inventors with the public interest.

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. However, it is best to give due acknowledgement 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 the defendant has committed patent infringement; 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

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Legislations Governing Patent Infringement in India

Patent infringement in India is primarily governed by the Indian Patents Act, 1970, along with various amendments and rules that provide a comprehensive legal framework for protecting patent rights. Key legislations and provisions include:

  1. Indian Patents Act, 1970:
    • Section 48: Grants the patentee the exclusive rights to prevent third parties from making, using, offering for sale, selling, or importing the patented invention without consent.
    • Section 104: Provides the patentee the right to file a suit for infringement in a district court or a High Court having jurisdiction.
    • Section 105: Allows any interested person to apply to the court for a declaration that their product or process does not infringe a particular patent.
    • Section 106: Empowers the court to grant relief in cases of groundless threats of infringement proceedings.
    • Section 107: Details defenses available in suits for infringement, including challenges to the validity of the patent.
    • Section 107A: Clarifies certain acts that do not amount to infringement, such as experimental use and preparation of medicines for regulatory approval.
  2. The Patents (Amendment) Act, 2005:
    • Introduced significant changes, including product patents for pharmaceuticals and agricultural chemicals, and provisions for pre-grant and post-grant opposition.
    • Enhanced the enforcement mechanism and strengthened the provisions related to infringement.
  3. The Patents Rules, 2003:
    • Provides procedural guidelines for the implementation of the Patents Act, including the filing, examination, and opposition of patent applications.
    • Details the procedures for dealing with patent infringement cases.
  4. The Intellectual Property Appellate Board (IPAB):
    • Established under the Trade Marks Act, 1999, with jurisdiction over patents.
    • Handles appeals against decisions of the Controller of Patents and decisions related to revocation of patents.
  5. Civil Procedure Code, 1908:
    • Governs the procedural aspects of civil litigation, including patent infringement suits.
    • Provides the framework for filing suits, granting injunctions, and other remedies.
  6. Specific Relief Act, 1963:
    • Provides for specific remedies in cases of infringement, such as injunctions and damages.
    • Allows courts to grant temporary and permanent injunctions to restrain infringement activities.
  7. Customs Act, 1962:
    • Contains provisions to prevent the importation of goods that infringe intellectual property rights.
    • Enables the patentee to seek intervention from customs authorities to prevent the import of infringing goods.

These legislations collectively ensure a robust legal framework for protecting patent rights in India, addressing various aspects of patent infringement, and providing remedies for patentees. Understanding these laws helps patent holders enforce their rights and take appropriate legal action when necessary.

What Remedies are 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 permanent. However, the temporary injunction is dissolved and does not become permanent 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. Suppose 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. In that case, damages may not be awarded to the plaintiff.

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What Defences are available to the Defendant in a suit for Patent Infringement?

In a lawsuit for patent infringement, the defendant may raise several defences to avoid 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 public’s benefit.
  • 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. 

Doctrines Related to Patent Infringement

Several legal doctrines are pivotal in determining patent infringement cases. These doctrines help courts interpret patent claims, assess infringement, and balance the rights of patent holders with public interest. Here are key doctrines related to patent infringement:

  1. Doctrine of Equivalents:
    • Definition: This doctrine allows a court to hold a party liable for patent infringement even if the infringing product or process does not literally fall within the patent claims but performs substantially the same function in substantially the same way to achieve the same result.
    • Purpose: It prevents infringers from avoiding liability by making insubstantial changes to a patented invention.
    • Application in India: Indian courts have applied this doctrine to ensure that minor variations that achieve the same result do not escape infringement liability.
  2. Doctrine of Prosecution History Estoppel:
    • Definition: This doctrine prevents a patentee from interpreting the scope of the patent claims more broadly than what was explicitly stated during the patent application process.
    • Purpose: It holds patentees accountable for amendments and representations made during the prosecution of the patent application, preventing them from reclaiming surrendered subject matter.
    • Application in India: Though not widely used, Indian courts consider prosecution history in interpreting patent claims and determining infringement.
  3. Doctrine of Exhaustion (First Sale Doctrine):
    • Definition: Once a patented item is sold by the patentee or with their authorization, the patent holder’s control over that particular item is exhausted.
    • Purpose: It allows the purchaser of a patented product to use or resell the product without further interference from the patent holder.
    • Application in India: Recognized under Section 107A(b) of the Indian Patents Act, allowing parallel importation of patented products legally sold abroad.
  4. Doctrine of Repair and Reconstruction:
    • Definition: Differentiates between permissible repair and impermissible reconstruction of a patented product.
    • Purpose: It allows the owner of a patented product to repair it to extend its life, but prohibits them from reconstructing the product to create a new article.
    • Application in India: Indian courts have referenced this doctrine to balance patent rights with the rights of product owners.
  5. Doctrine of Inequitable Conduct:
    • Definition: If a patentee is found to have acted fraudulently or deceptively during the patent application process, the patent can be rendered unenforceable.
    • Purpose: It ensures honesty and integrity in dealings with the patent office.
    • Application in India: Similar principles are applied under Section 64 of the Indian Patents Act, where a patent can be revoked if it was obtained fraudulently.
  6. Doctrine of Prior User Rights:
    • Definition: Provides that a person who, in good faith, was already using the patented invention before the patent application was filed may continue to use the invention.
    • Purpose: It protects the interests of those who have invested in the development and use of an invention prior to the patent filing.
    • Application in India: Recognized under Section 104A of the Indian Patents Act, allowing prior use as a defence in infringement suits.

These doctrines play a crucial role in patent litigation, providing frameworks for interpreting patent claims, assessing the scope of patent rights, and ensuring fair enforcement of patents. Understanding these doctrines helps in navigating the complexities of patent infringement cases.

Landmark Judgments for Patent Infringements in India

Several landmark judgments in India have shaped the landscape of patent law and provided critical interpretations of the Indian Patents Act, 1970. These judgments highlight the judiciary’s approach to patent infringement cases and establish important precedents:

  1. Roche v. Cipla (2008):
    • Case Summary: This was a significant case in the Indian pharmaceutical sector, involving a patent dispute over Roche’s lung cancer drug, Erlotinib.
    • Judgment: The Delhi High Court denied Roche’s plea for an interim injunction against Cipla, emphasizing the balance of convenience and public interest in accessing affordable medicines. This case highlighted the importance of considering public health implications in patent infringement disputes.
  2. Bayer Corporation v. Union of India (2014):
    • Case Summary: This case involved the first compulsory license granted by the Indian Patent Office for Bayer’s patented cancer drug, Nexavar.
    • Judgment: The Intellectual Property Appellate Board (IPAB) upheld the compulsory license granted to Natco Pharma, allowing it to manufacture and sell a generic version of Nexavar. The judgment stressed the need for patented medicines to be available at reasonably affordable prices.
  3. Novartis AG v. Union of India (2013):
    • Case Summary: This landmark case revolved around Novartis’ cancer drug, Glivec, and the patentability of its beta-crystalline form.
    • Judgment: The Supreme Court of India rejected Novartis’ patent application, citing Section 3(d) of the Indian Patents Act, which prevents the evergreening of patents. The judgment reinforced India’s stance on preventing the extension of patent monopolies through minor modifications.
  4. Merck Sharp and Dohme Corp. v. Glenmark Pharmaceuticals (2015):
    • Case Summary: Merck sued Glenmark for infringing its patent on the diabetes drug, Sitagliptin.
    • Judgment: The Delhi High Court granted an injunction against Glenmark, preventing the manufacture and sale of the infringing product. The court highlighted the need for clear evidence of patent infringement to grant such injunctions.
  5. Monsanto Technology LLC v. Nuziveedu Seeds Ltd. (2018):
    • Case Summary: This case involved a dispute over Monsanto’s patented Bt cotton technology and its licensing to Indian seed companies.
    • Judgment: The Delhi High Court initially ruled in favour of Nuziveedu, holding that the technology was not patentable under Indian law. However, the Supreme Court of India later set aside this judgment and remanded the matter to a single judge for fresh consideration. This case underscores the complexities of patent enforcement in agricultural biotechnology.
  6. Ericsson v. Micromax (2013):
    • Case Summary: Ericsson filed a suit against Micromax for infringing its Standard Essential Patents (SEPs) related to GSM technology.
    • Judgment: The Delhi High Court granted an interim injunction against Micromax and ordered it to pay royalties to Ericsson. This case was significant for establishing the framework for handling SEP litigation in India.
  7. Dr. (Miss) Snehlata C. Gupte v. Union of India (2002):
    • Case Summary: This case involved the interpretation of what constitutes a “true and first inventor” under Indian patent law.
    • Judgment: The Bombay High Court clarified the definition of a true and first inventor, emphasizing the need for proper attribution of inventorship in patent applications. This judgment is crucial for understanding the requirements of inventorship and its implications for patent validity.

These landmark judgments provide valuable insights into the interpretation and enforcement of patent laws in India, influencing how patent infringement cases are handled and the balance between patent rights and public interest.

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 register your copyright to protect it from infringement. To get the help of a business lawyer to obtain 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.

Frequently Asked Questions On Patent Infringement in India

Q1. What is Patent Infringement?

Ans1. Patent Infringement occurs when someone uses a patented invention without the permission of the patent holder. This can include making, using, selling, offering for sale, or importing the patented product or process.

Q2. How can I prevent Patent Infringement?

Ans2. Here are some ways to prevent Patent Infringement:

  • Develop unique products: Encourage your team to create original inventions.
  • Obtain licenses: If you need to use a patented material, get permission from the patent holder.
  • Use royalty-free media: Consider resources that allow use without restrictions, but always credit the owner.
  • File a lawsuit: If your patent rights are violated, you can sue for infringement.

Q3. What is the deadline for filing a Patent Infringement lawsuit?

Ans3. The Limitation Act in India requires filing a lawsuit within three years of the infringement.

Q4. In which courts can Patent Infringement cases be heard?

Ans4. Both District Courts and High Courts have jurisdiction over Patent Infringement cases. However, only the High Court can handle cases where the defendant has counterclaimed for cancellation of the patent.

Q5. What remedies are available for Patent Infringement?

Ans5. If you win a Patent Infringement case, you may be entitled to several remedies:

  • Interlocutory/Temporary Injunction: This court order stops the defendant from further infringement while the case progresses.
  • Permanent Injunction: If the court finds infringement, a permanent injunction is issued to prevent future infringement.
  • Damages: You can receive monetary compensation for the financial losses caused by the infringement.

Q6. What defenses can a defendant use in a Patent Infringement lawsuit?

Ans6. A defendant in a Patent Infringement case can raise several defenses, such as:

  • Lack of intent: They can argue they unintentionally infringed the patent.
  • Res judicata or estoppel: They can claim the case has already been decided or they are barred by a previous ruling.
  • Plaintiff’s lack of legal standing: They can argue the plaintiff doesn’t have the right to sue for infringement.
  • Valid license: They may possess a license to use the patented product.
  • Invalid patent: They can argue the patent is invalid or revoked.
  • Government right to produce medicines: The government may have the right to produce patented medicines for public benefit.
  • Obviousness of infringement: They can argue the alleged infringement lacks novelty or is obvious.

Q7. Are there exceptions to Patent Infringement?

Ans7. Yes, Section 107A of the Patents Act allows for exceptions:

  • Bolar exemption: This allows research on patented pharmaceuticals before patent expiry for public benefit.
  • Parallel imports: Importing a patented product with the patentee’s authorization from another country.

Q8. What happens if I accidentally infringe a patent?

Ans8. If you can prove you were unaware of the patent’s existence and had no reason to know, the court may not award damages.

Q9. Is this content about Copyright Infringement?

Ans9. No, this content focuses on Patent Infringement. Patents protect inventions, while Copyright protects creative works like writings, music, or software.

Q10. Where can I find more information on Patent Infringement?

Ans10. Consulting a business lawyer specializing in intellectual property law is recommended for specific advice regarding your situation.

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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