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    REMEDIES AGAINST PATENT INFRINGEMENT IN INDIA

    What remedies are available against Patent Infringement in India?

    All the IPR laws (excluding patent and designs laws) provide penal provisions to prevent infringement.

    Administrative Remedy:

    If and when infringing goods are imported into Indian Territory, the IP owner can approach the Collector of Customs and prevent the entry of these goods into the Indian market. The IP owner must provide the name of the exporter, consignee, port of entry, name of the ship, etc to avail him/herself of this remedy.

    Civil Remedy:

    To claim damages, the IP owner will have to pay a court fee on the damages claimed. The courts in India grant two types of injunctions.

    A. Interim Injunctions
    1. Interim injunctions are granted during the pendency of the case before a full-fledged trial. This relief is granted by a summary procedure based on the admitted facts and by establishing:
    2. a prima facie case - where the burden of proof lies on the patentee to establish the patent violation; and
    a balance of convenience in favour of the plaintiff

    B. Permanent Injunctions
    Permanent injunctions are granted after a full-fledged trial. In the event that the court concludes, after a full-fledged trial, that the plaintiff had unjustly obtained an interim injunction before trial, then the Court will direct the plaintiff to compensate the defendant for the losses that the defendant had suffered due to the subsistence of the injunction prior to the trial.

    Relief of Delivery Up

    Order XXXIX rule 7 of Civil Procedure Code empowers Indian courts to appoint a Commissioner to visit the defendant’s premises and take inventory of the infringing articles that are present in the defendant’s premises. Such orders are normally granted without notice to the infringer; this provision is similar to Anton Piller orders granted by English courts.

    Relief

    The relief that a court may grant in any suit for infringement includes an injunction and at the option of plaintiff, either damages or an account of profits. The court may also order that the goods which are found to be infringing and materials and implements the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed. (Section 108 of the Indian Patent Act)

    However damages or account of profits shall not be granted against the defendant who proves that at the date of infringement he was not aware and had no reasonable grounds for believing that the patent existed. (Section 111 of the Indian Patent Act) It further provides that a person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason of application to an article of words “patent” or “patented” or any other words implying that the article is patented unless the number of patent accompanies the word or words in question.

    If in an infringement proceedings it is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid, but that any other claim is invalid the court may grant relief in respect of any valid claim which is infringed provided that the Court shall not grant relief except by way of injunction (and not in the form of damages or account of profit.)

    If the plaintiff proves that the invalid claims were framed in good faith and with reasonable skills and knowledge then the court may, subject to its discretion, grant relief in the form of damages or account of profit. (Section 114 of the Indian Patent Act).

    Burden of Proof

    Where there is an alleged infringement of a patented invention that is in the form of a product, the burden of establishing that an infringement has occurred lies on the patentee.

    In the case of a process patent, the burden may shift to the defendant/infringer provided the patentee is able to prove to the court that through reasonable efforts he/she has not been able to determine the process which has been used by the defendant.

    Defences in Suit for Infringement

    Every ground on which a patent may be revoked is available as a ground for defence in suit for infringement of patent.

    In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution or any medicine or drug, it shall be the ground of defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in Section 47. (Section 107 of the Indian Patent Act.)

    Relief in Case of Groundless Threats of Infringement:

    Where any person (whether entitled to or interested in a patent or an application for patent or not) threatens another person with proceedings for infringement of a patent, the person aggrieved may bring a suit against him/her for the following relief:

    1. a declaration that the threats are unjustifiable;

    2. an injunction against the continuance of such threats; and

    3. such damages as he/her has sustained thereby.

    For the grant of an injunction, the burden of proof lies on the plaintiff to show that a prima facie case has been made out. (Section 106 of the Indian Patent Act.)

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