Saturday, 29 January 2022

What is Patent Infringement?-by Vedant Karia at LexCliq

 What is Patent Infringement?-by Vedant Karia at LexCliq

A patent is a legal document that defines and grants the bearer exclusive rights to produce, sell, or distribute an invention. Patent infringement is the act of violating the patent holder's exclusive rights. The government grants a patent for a limited time. If the patentee's rights are exercised by someone else without the patentee's consent, it is a patent infringement and the person is held liable. Patent infringement is covered by sections 104-114 of the Patents Act 1970.

The Patents Act, 1970, was the primary enactment governing patent infringements in India when it was enacted in 1972. It rendered pharmaceutical, food, and agrochemical advances unpatentable in India. It permitted the copying and sale of ideas patented elsewhere in the world in India. Additionally, this act imposed import limitations on the completed formula and established rigorous pricing control measures. However, this act harmed foreign investment in the country by failing to benefit large international multinational firms and violating the worldwide patent system.


India joined the WTO in 1992, and as a result, it became necessary to change the existing law to comply with the TRIPS agreement's provisions. To comply with the TRIPS agreement, it was critical to implement Exclusive Marketing Rights and a mailbox system. Under the EMR, a foreign business would be granted exclusive rights to commercialize a pharmaceutical or agricultural product in India for a predetermined period of five years. The mailbox system would receive all patent applications for medicinal and agricultural items. To bring these provisions into effect in the 1970 Patents Act, modifications to the Act were introduced in 1999, 2001, 2001, and 2005.


These measures, however, were insufficient to bring the Indian Patents Act into compliance with the Global Patents Act. As a result, a significant change known as the Patents Amendment Act was passed in 2005. The following sections summarise the amendment act's principal provisions.

The 1970 Patents Act permits the patentee to sue for infringement of his exclusive patent rights. The limitation term under the Limitation Act is three years from the date of infringement of the patent rights. Generally, the burden of proof is on the plaintiff to establish that the defendant committed the patent infringement, but in some instances, the court may determine the burden of proof. In India, both district courts and high courts have the authority to consider patent infringement complaints. However, if the defendant files a counterclaim for cancellation of the patent, only the High Court has jurisdiction to consider the matter. The patentee may file his complaint in the county in which he resides, in the county in which he conducts business, or in the county in which the cause of action arises. Patentees' rights are defined in Section 48 of the Indian Patents Act.



It list down the following activities as the infringement of the patentee’s rights:

  • Using

  • Making

  • Importing

  • Offering for sale

  • Selling the patented process


If the defendant commits any of the aforementioned behaviors, he will be held accountable for patent infringement. Section 108(1) of the 1970 Patents Act allows for the plaintiff's relief in the event that his patent rights have been breached.


The remedies available to the patentee are:

  • Temporary/Interlocutory Injunction

  • Permanent injunction

  • Damages


Patent infringement not only harms the inventor/interests of the patentee but also discourages further inventions. This is why patent laws were created to protect patent rights. However, changing times and needs necessitate revisiting patent laws and giving inventors more protection for their inventions. Achieving judicial interpretations of various patent laws is critical for both the patentee and the general public. Finally, the government's role in protecting optimum interests and helping to promote new inventions is critical.

Vedant Karia


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