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    PATENT INFRINGEMENT & ENFORCEMENT IN INDIA

    Infringing Activities:

    The Indian Patent Act does not specifically define activities that constitute infringement of patent rights.
    Section 48, confers exclusive rights upon the patentee to exclude third parties from making, importing, using, offering for sale or selling the patented invention. Violation of aforementioned monopoly rights would constitute infringement of patent.

    Non-Infringing Activities:

    Government Use

    An invention can be used anytime after the application for patent is filed, or after the patent is granted by the ‘Central Government’ and by ‘any person authorized by it’. The patented product may be imported or made by or on behalf of the government. Similarly, the patented process may be used by or on behalf of the government for its own use.

    Research Exemption

    Any person may use or make the patented invention merely for the purposes of experiment or research including and imparting instructions to students.

    Supply of Patented Drugs to Health Institutions

    A patented invention in respect of any medicine or drug may be imported by the Government for the purpose merely of its own use or for distributing in any dispensary, hospital or medical institution maintained by or on behalf of the government.

    Use of Patented Invention on Foreign Vessels

    Patent rights are not considered to be infringed where the foreign vessel/aircraft/land vehicle temporarily or accidentally comes to India and uses the invention in the body of the vessel/in machinery/tackle/apparatus/in its construction or working.
    This provision is applicable only to the foreign vessel/aircraft/land vehicle of those foreign countries that provides reciprocity to Indian vessel/aircraft/land vehicle.

    The Bolar Exemption

    The patented invention may be used, constructed, made, sold or imported for the reasons solely related to the development and submission of information to regulatory authority of India or elsewhere.

    Importation of Patented Products

    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) is not considered as an infringement of patent rights.

    Patent Jurisdiction while filing suits for Patent Infringement in India:

    • A patent holder can file a suit for infringement in the District Court or High Court. However where counter-claims for revocation of the patent is made by the defendant, the suit along with the counter-claims are transferred to the High Court for a decision on the validity of the patent.

    • According to Section 19 of the Civil Procedure Code 1908, the patentee can bring the suit for infringement in the court which has jurisdiction in the area where he/she resides or carries on a business or personally works for gain. The patentee can also bring the suit for infringement in a court which has jurisdiction in the area where the infringing activity took place.

    • The suit for infringement can only be brought once the patent has been granted. However, if the court decides in favour of the patentee then he/she can claim damages for the infringement that was committed between the date of publication of the patent application and its grant.

    • The suit for infringement can also be initiated by the licensee. The licensee may call upon the patentee to initiate proceedings to prevent infringement of the patent. If the patentee does not take any action within two months, the licensee can institute proceedings for infringement in his/her own name.

    • The Indian Limitation Act governs the period of limitation for bringing a suit for infringement of a patent, which is three years from the date of infringement.

    • If the patent has ceased to have an effect due to non-payment of the renewal fee, then the patentee will not be entitled to institute the proceedings for the infringement committed between the date on which patent ceased to have an effect and the date of publication of the application for restoration of the patent.

    For more information on Patent Infringement and Enforcement in India please write to us at: admin@maxipconsult.com.
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