In this article, we will be discussing the consequences of patent infringement in India. Indian Patents Act, 1970 also considers manipulation of entries in a register which is claiming patent rights in an unauthorized way etc. to be punishable criminal offenses.
Such penalties are mentioned in the Indian Patents Act, 1970. Though it doesn’t specifically mention the consequences of patent infringement. But in Section 48 rights conferred to the patentee are mentioned. Some of them are:-
- Where the subject matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, also from the act of making, using, offering for sale, selling or importing for those purposes that product in India.
- Where the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.
Patent Infringement in the Indian Patents Act, 1970
As per the provisions mentioned in the Indian Patents Act, 1970, following amount as an act of Patent Infringement:
- The colorable imitation of the invention
- Mechanical Equivalents
- Carrying essential features of the invention
- Immaterial variation in the invention
Mechanical equivalents here mean the use of substitutes for some features, just to obtain same results for the same use as done by the patentee.
The limitation period for instituting suit for the patent infringement is 3 years from the date of infringement and jurisdiction is the geographic area where the infringement has taken place. Also, the burden of proof to establish that an infringement has occurred lies in the patentee.
The following can institute a suit in patent infringement proceedings:
- The exclusive licensee, if the license is registered
- A compulsory licensee
Another important point to be kept in mind is that a suit for infringement can only be instituted when the patent has been sealed. During the phase when the specification has been accepted, published and oppositions have been called; the suit for infringement cannot be instituted. Also for the damages sustained due to the infringement committed during the period between the date of publication and date of grant; a separate suit for damages can be instituted.
Remedies and Reliefs
1. Administrative remedy: The patent owner can reach the collector of customs and prohibit the entry of these goods into the Indian market. The patent owner must provide the name of the exporter, consignee, port of entry, name of the ship etc. details.
2. Civil remedies
3. Injunctions: When there is a prima facie case and/or balance of convenience is in the favor of the plaintiff; Interim injunction is granted. Whereas after the complete trial permanent injunctions are granted.
4. Damages or accounts of profits is granted if it is established that on the date of the infringement; the defendant was aware of the prior existence of the patent.
The court may also order delivery up of the infringing goods. This is mentioned in order XXXX rule 7 of the Civil Procedure Code. As per the provisions mentioned under this relief, a commissioner appointed by the court visits the defendant’s premises and take the inventory of the infringing articles that are present in the defendant’s premises. These orders are usually passed without sending notice to the infringer.
You may also like to read: What is the difference between Plagiarism & Copyright Infringement
Groundless Threats for Infringement Proceedings:
There may be a certain situation where a person is aggrieved by baseless threats of patent infringement. Such a person may seek for the following reliefs:
1) Injunction against such threats;
2) Ask for damages if any sustained;
3) A declaration to the effect that the threats are unjustified.
In India as the awareness regarding IP protection is increasing, people are becoming more and more conscious about the ways to secure their patents. Hence, a concerned and well-informed strategy towards securing one’s Intellectual property is always the best approach.