A patent gives an inventor a valuable legal right to control the use of a patented invention. But obtaining a patent is only one part of protecting an invention. The real value of a patent often depends on the ability of the patent owner to identify unauthorised use and take effective legal action against infringement.
When a third party manufactures, uses, sells, offers for sale or imports a patented product without the patentee’s consent, or uses a patented process without authorisation, the conduct may amount to patent infringement in India.
The law governing patent infringement in India is primarily contained in the Patents Act, 1970, particularly Sections 48, 104A, 107, 107A and 108.
This article explains what patent infringement means, how courts determine infringement, the importance of patent claims, available defences and exceptions, and the remedies available to patent owners.
What Is Patent Infringement in India?
The Patents Act, 1970 does not provide a single statutory definition of “patent infringement.” Instead, the exclusive rights granted to a patentee are primarily set out under Section 48.
For a product patent, the patentee generally has the exclusive right to prevent third parties, without consent, from:
- Making the patented product;
- Using the patented product;
- Offering the patented product for sale;
- Selling the patented product; or
- Importing the patented product into India.
For a process patent, the patentee can prevent unauthorised use of the patented process and certain acts relating to products obtained directly through that process.
Example of Patent Infringement
Suppose Company A owns a valid patent for a technologically advanced water-purification machine. Company B independently manufactures and sells a machine that falls within the scope of one or more enforceable claims of Company A’s patent without obtaining permission.
Depending on the facts and the precise wording of the claims, Company A may have grounds to initiate a patent infringement lawsuit against Company B.
However, simply producing a product that performs a similar function does not automatically establish infringement. The court must examine the scope of the patent claims and compare them with the allegedly infringing product or process.
Patent Claims Are the Starting Point for an Infringement Analysis
One of the most important principles in patent litigation is that the claims define the legal scope of patent protection.
The specification explains the invention and provides technical information, background and embodiments. However, the claims establish the boundaries of the exclusive rights granted by the patent.
For example, a patent specification may describe ten different technical features, while an independent claim may require only five specific elements.
The court will therefore ask whether the allegedly infringing product or process contains the elements required by the relevant patent claim.
This is why claim construction is often one of the most important stages of patent litigation.
A patent owner cannot ordinarily establish infringement merely by showing that the defendant’s product looks similar or performs the same general function. The relevant question is whether the defendant’s product or process falls within the scope of the patent claims.
Literal Infringement and Substantial Similarity
In a straightforward patent infringement case, the allegedly infringing product or process may contain all the essential elements of the relevant patent claim. This is commonly referred to as literal infringement.
Patent disputes become more complicated when a defendant changes or replaces one or more elements while allegedly achieving substantially the same technical result.
Indian patent jurisprudence has considered whether alleged differences are genuine technical distinctions or merely insignificant, colourable or immaterial variations.
In Raj Parkash v. Mangat Ram Chowdhry, AIR 1978 Del 1, the Delhi High Court examined the importance of the essential features of a patented invention and recognised that merely introducing insignificant variations does not necessarily avoid infringement.
Therefore, a patent infringement analysis should focus on the substance and essential features of the claimed invention, rather than superficial differences in appearance or terminology.
How Is Patent Infringement Proved?
The precise evidence required depends upon the nature of the patent and the allegations involved.
A patent owner may need to establish:
- That the patent is valid and enforceable;
- The scope and meaning of the relevant patent claims;
- That the defendant’s product, process or conduct falls within those claims;
- That the defendant’s conduct falls within an exclusive right granted under Section 48; and
- That no applicable statutory exception or defence protects the defendant’s conduct.
Technical evidence can be particularly important in patent disputes. Courts may examine product specifications, technical documents, manufacturing processes, laboratory evidence, expert opinions, source code, drawings, manuals and other relevant material depending on the technology involved.
Burden of Proof in Process Patent Infringement
Process patent cases can present a unique evidentiary challenge.
The patented manufacturing process may take place inside the defendant’s factory and may not be publicly observable. As a result, the patent owner may find it difficult to obtain direct evidence showing exactly how the defendant manufactures the product.
Section 104A of the Patents Act, 1970 provides a special rule concerning the burden of proving the process used to obtain an identical product, subject to the statutory conditions.
Where the requirements of the provision are satisfied, the court may require the defendant to establish that the process used is different from the patented process.
This provision can be particularly significant in industries where the final products appear identical but the underlying manufacturing processes cannot easily be determined from the finished product.
What Defences Are Available in a Patent Infringement Case?
A patent infringement allegation does not automatically establish liability.
One of the strongest aspects of Indian patent litigation is that a defendant can challenge not only the allegation of infringement but also the validity of the patent itself.
Under Section 107 of the Patents Act, 1970, every ground on which a patent may be revoked under Section 64 is available as a defence in an infringement proceeding.
Depending on the facts, a defendant may raise arguments relating to:
- Lack of novelty;
- Lack of inventive step;
- Insufficient or inadequate disclosure;
- Wrongful obtaining of the patent;
- Non-patentable subject matter;
- Prior publication;
- Prior public knowledge or use;
- Failure to comply with statutory requirements;
- Incorrect or incomplete patent specifications; and
- Other grounds available under Section 64.
Consequently, patent litigation often involves two connected questions:
Is the patent infringed?
and
Is the patent valid and enforceable?
A patent owner therefore needs to be prepared for both infringement analysis and potential validity challenges.
The Bolar Exception Under Indian Patent Law
Not every act involving a patented invention during the patent term constitutes infringement.
Section 107A of the Patents Act, 1970 provides certain exceptions to infringement.
One important exception is commonly known as the Bolar exception or regulatory-use exception.
Under this provision, certain acts involving a patented invention may be undertaken for purposes reasonably related to the development and submission of information required under laws regulating the manufacture, construction, use or sale of products.
The provision is particularly relevant to the pharmaceutical industry, where generic manufacturers may need to conduct research, testing and regulatory activities before the expiry of a pharmaceutical patent.
The Bolar exception is therefore an important consideration when assessing whether pre-expiry activities by a generic manufacturer constitute patent infringement.
Parallel Importation and Section 107A
Section 107A also addresses certain forms of importation involving patented products.
Subject to the statutory requirements, importation of a patented product may not constitute infringement where the product has been duly authorised for sale or distribution by the patent proprietor or another person authorised under the applicable legal framework.
This provision is relevant to the broader principle that patent rights do not necessarily give a patentee unrestricted control over every subsequent commercial transaction involving a patented product.
Remedies for Patent Infringement in India
If patent infringement is established, Section 108 of the Patents Act, 1970 provides important remedies.
A court may grant:
- Injunctions;
- Damages;
- An account of profits; and
- Orders concerning infringing goods, materials or implements predominantly used for creating such goods, subject to the statutory requirements.
1. Injunction
An injunction can prevent the defendant from continuing the allegedly infringing activity.
Depending on the circumstances, a patent owner may seek interim relief during the pendency of the proceedings and permanent relief after final adjudication.
2. Damages
Damages are intended to compensate the patent owner for losses caused by infringement.
The assessment of damages may depend on factors such as the extent of infringement, commercial impact, sales, market conditions and evidence of financial loss.
3. Account of Profits
An account of profits focuses on the profits earned by the infringer through the allegedly wrongful activity rather than simply measuring the patent owner’s loss.
The appropriate remedy depends upon the facts and evidence presented before the court.
4. Seizure, Forfeiture or Destruction
In appropriate circumstances, the court may also make orders concerning infringing goods and materials or implements predominantly used to create such goods, subject to the requirements of the Patents Act.
Interim Injunction in Patent Infringement Cases
Patent owners frequently seek interim or temporary injunctions to prevent continued infringement while the case is pending.
Indian courts generally consider established principles such as:
- Whether the plaintiff has established a prima facie case;
- Whether the balance of convenience favours the plaintiff; and
- Whether refusal of interim relief may result in irreparable injury.
Patent cases can be especially challenging at the interim stage because the court may have to consider technical claim construction, infringement allegations and preliminary validity objections without conducting a full trial.
The apparent strength of the patent, prior art, claim construction and the nature of the defendant’s product can therefore become important considerations.
Important Supreme Court Decision: Bajaj Auto Ltd. v. TVS Motor Co. Ltd.
In Bajaj Auto Ltd. v. TVS Motor Co. Ltd., (2009) 9 SCC 797, the Supreme Court dealt with patent litigation and emphasised the need for expeditious adjudication of such disputes.
Patent litigation can involve highly technical evidence, complex legal questions and significant commercial consequences. Delays may therefore have a substantial impact on both patent owners and businesses accused of infringement.
The decision is frequently discussed in the context of the need for efficient handling of patent disputes.
F. Hoffmann-La Roche Ltd. v. Cipla Ltd.
Another important Indian patent decision is F. Hoffmann-La Roche Ltd. v. Cipla Ltd., (2016) 2 SCC 100.
The case is significant in Indian patent jurisprudence for its discussion of patent validity, infringement and the assessment of pharmaceutical patent disputes.
Pharmaceutical patent litigation frequently demonstrates why infringement and validity cannot always be treated as completely separate issues. Courts may need to examine claim scope, prior art, inventive step and technical differences while deciding whether an injunction should be granted.
Patent Infringement vs. Patent Validity
A common misconception is that obtaining a patent certificate automatically guarantees that every infringement action will succeed.
That is not necessarily the case.
A defendant may challenge the validity of the patent during infringement proceedings using the grounds permitted under the Patents Act.
Therefore, a patent owner considering enforcement should ideally assess:
- The strength of the patent claims;
- Relevant prior art;
- The prosecution history;
- The validity of the patent;
- The technical features of the accused product or process;
- Evidence of infringement;
- Possible statutory exceptions; and
- The commercial consequences of enforcement.
A strong enforcement strategy should therefore be based on both infringement analysis and validity analysis.
What Should a Patent Owner Do If Someone Is Using the Invention Without Permission?
If you believe that another business is using your patented invention without authorisation, the first step should be a detailed technical and legal assessment.
Depending on the circumstances, the patent owner may consider:
Step 1: Review the Patent Claims
Identify the independent and dependent claims that are potentially infringed.
Step 2: Collect Evidence
Preserve product samples, photographs, brochures, websites, invoices, advertisements, technical documents and other evidence showing the defendant’s activities.
Step 3: Conduct a Claim Chart Analysis
Map each relevant element of the patent claim against the corresponding feature of the allegedly infringing product or process.
Step 4: Examine Prior Art and Validity
Before commencing litigation, evaluate whether the defendant is likely to challenge the validity of the patent and assess the strength of the patent against relevant prior art.
Step 5: Consider Legal Action
Depending on the circumstances, the patent owner may consider issuing a legal notice, negotiating a licence or settlement, or initiating patent infringement proceedings.
Step 6: Consider Interim Relief
Where continuing infringement may cause serious commercial harm, the patent owner may consider seeking an interim injunction or other appropriate relief.
Why Patent Enforcement Matters for Businesses
A patent is not merely a registration certificate. It is a commercial asset that can provide a business with an exclusive competitive position.
Unauthorised use can potentially result in:
- Loss of market share;
- Reduced sales;
- Price competition;
- Loss of licensing opportunities;
- Damage to commercial advantage;
- Unauthorised exploitation of research and development investments; and
- Reduced return on investment in innovation.
Effective patent enforcement can therefore play an important role in protecting both the legal and commercial value of an invention.
Conclusion
Patent infringement in India is fundamentally a question of whether the defendant’s product, process or conduct falls within the legal scope of the patent claims.
A patent owner cannot rely solely on the fact that another product appears similar or performs the same general function. The actual claims, technical features, evidence, statutory exceptions and possible validity challenges must all be carefully examined.
For inventors and businesses, obtaining a patent is only the beginning. Effective protection also requires monitoring the market, identifying possible infringement, preserving evidence and taking timely legal action where necessary.
A strong patent enforcement strategy combines careful claim construction, technical comparison, validity assessment and appropriate legal remedies.
Ultimately, the commercial value of a patent lies not only in obtaining exclusive rights, but also in the ability to protect and enforce those rights effectively.
Key Legal References
- Patents Act, 1970 — Sections 48, 64, 104A, 107, 107A and 108
- Raj Parkash v. Mangat Ram Chowdhry, AIR 1978 Del 1
- Bajaj Auto Ltd. v. TVS Motor Co. Ltd., (2009) 9 SCC 797
- F. Hoffmann-La Roche Ltd. v. Cipla Ltd., (2016) 2 SCC 100
- WIPO materials on patent infringement and enforcement
- Office of the Controller General of Patents, Designs & Trade Marks (CGPDTM)
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