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Patent - Enforcement & Remedies

PATENT INFRINGEMENT

The following acts constitute infringement under the Indian patent law:
  • Manufacturing patented products; or
  • Using patented processes; or
  • Offering to sell or selling patented products; or
  • Using products directly acquired by the patented process for production or business purposes; or
  • Importing or exporting patented products or products that are acquired through patented processes.
The rights holder may prevent unauthorized third parties from the acts of making, using, offering for sale, selling, or importing for those purposes, the patented product into India. When the rights holder has the exclusive right over a process, it shall have the right to prevent third parties, who do not have his consent, from the act of using that process, and from the acts of using, offering for sale, selling, or importing for those purposes the product obtained directly by that process in India.

ACTS NOT CONSTITUING PATENT INFRINGEMENT

The following acts do not constitute an infringement under the Indian patent system:
  • Any act of making, constructing, using, selling, or importing a patented invention solely for uses reasonably related to the development and submission of information, as is required under any law that regulates the manufacture, construction, use, sale, or import of any product;
  • Importation of patented products by any person from a person who is duly authorized under the law to produce and sell or distribute the product.
  • In the case of any infringement, the rights holder has the option of initiating a civil action against the infringer.

ENFORCEMENT AGAINST INFRINGMENT

  • Jurisdiction and Venue

    • The suit for infringement can be initiated either in the District Court or in the High Court depending on the valuation of the suit. The suit can be at the place where the rights holder or one of the rights holders actually and voluntarily reside or work for gain or carries on business.
  • Elements of the Complaint:

    • In the Complaint, the rights holder is required to demonstrate that (a) the alleged infringing act infringes the patent of the rights holder; and (b) the unlawful act interfered with the patent holder's rights of exclusive use or caused the rights holder economic loss
  • Ex-parte Interim Injunction:

    • Most Indian courts will grant ex-parte interim injunctions. Ex-parte interim injunction is a temporary injunction granted for the course of the trial restraining the infringer from use of the infringing patent, without any notice to the infringer and on the date of the first hearing itself, provided that the rights holder is able to establish its rights before the Court, establish the gravity of the offence and the fact that the violation of its proprietary rights merits immediate consideration.
  • Relief sought in the complaint:

    • The relief that can be sought in a complaint include an injunction and damages or an account of profits. The court may also order that the goods that are found to be infringing and materials, whose prominent use is in the creation of the infringing goods, can be seized, forfeited or destroyed.
  • Damages:

    • There has been a change in the Indian judicial system in recent times with some of the courts granting damages to the rights holders. However, such cases are still few and far between and the amount of damages has not been substantial.

RECTIFICATION ACTION

Rectification proceedings can be initiated against a patent by an aggrieved person before the Intellectual Property Appellate Board on any of the following grounds:
  • by the absence or omission from the register of any entry;
  • by any entry made in the register of patents without sufficient cause;
  • by any entry wrongly remaining on the register; or
  • by any error or defect in any entry in the register.
The Appellate Board can pass orders for variation or deletion of any entry as it may deem fit.
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