Patent exploitation rights in India are territorial and include the following -
1. Right to use; 2. Right to sell; 3. Right to make; 4. Right to import into India.
A person can be liable for patent infringement for violating any of the above rights without the patent holder's consent. A patent holder could only bring an infringement suit if the infringement occurred within India.
The determination of patent infringement is a mixed question of law and facts. To determine that, one has to meet the following criteria:
1. The product or process infringes at least one claim of the patent; 2. The infringement took place in India, during the life of the patent; 3. There is an alleged infringement of at least one of the unique rights granted to the patentee; 4. The act does not fall under any of the exceptions under the act.
To find out whether a patent claim has been infringed upon, one has to pursue the steps below:
1. Claim construction 2. Claim comparison 3. Equivalence analysis
Direct infringement - It is one of the most common types of patent infringement. It occurs when a product is significantly related to a patented product or where the marketing or commercial use of the invention is carried out without the permission of the invention owner.
Indirect infringement - It occurs when some amount of accidental infringement or deceit happens without any intention of infringement. Basically, contributory infringement is trading in the parts or components that are to be used for another patent invention and cannot be used by anyone else for any other purpose.
A patentee whose name is entered in the register of the patents as the grantee of the patent is eligible for filing a patent infringement suit. If there are co-owners, any owner can initiate a suit and make the other co-owner a party to the suit. In addition, an exclusive licensee (whose name appears in the register maintained by the IPO) has the right to initiate a suit of infringement that occurred after the license was granted. The assignee may be made a party to the suit if the patent was assigned after the suit was initiated.
A suit for patent infringement can be brought before a district court or high court, depending on the valuation of the suit. As the act is silent on where the suit can be instituted, the provisions of the Code of Civil Procedure, 1908, will be applicable. As patents are treated as movable, an infringement suit can be brought by the plaintiff at any of the two places:
There are various stages of legal proceedings as follows-
1. Filing a plaint - The disputed applicants may initiate court proceedings by filing a plaint or a claim with the prescribed court fees along with the necessary files and documents. 2. Notice served to the defendant - notice to the defendant is issued by the court through a personal service (office of court or courier) at the address of the defendant. The plaintiff can also serve summons by delivery through post or electronic means via WhatsApp (messaging application).
3. Admission and denial of documents - The disputants must produce all the important documents before the court. The parties must specify their reliance on the submitted documents by admission and denials by assertion and contentions.
4. Framing of issues- The court frames the issues to be dealt with during the legal proceedings based on the pleadings filed by the applicants of the patent applications.
5. Discovery- It is a process in which the disputants may procure information or any specific documents in possession of the other by making a request before the court.
6. Evidence- At this stage, the parties will provide the evidence and confirm the accuracy and genuity of the evidence filed through an affidavit under oath.
7. Judgment - The court answers the issues framed with concrete reasoning and delivers a judgment depending on the submissions received from the parties and the facts of the case.
8. Contempt of Court - It is also a very serious issue. The ruling of any case depends heavily on submissions by the disputed parties on oath. If any of the parties make a false statement or misleading propositions, it is considered an obstruction to justice.
In India a suit for infringement of patents, the plaintiff can claim the following reliefs:-
1. An interim and permanent injunction against the defendant - The plaintiff can seek an interim injunction against the defendant during the pendency of the suit to avoid irreparable damages. A permanent injunction is obtained after the rights of the parties have been conclusively determined. 2. Damages or accounts of profits - Once the infringement is proved, the plaintiff has to choose any between the right to damages or account of profits. These are alternative remedies, and the plaintiff will have to choose one beforehand. 3. Seizure, forfeiture, or destruction of goods - The plaintiff might seek all the infringing products to be seized or destroyed to avoid infringing on goods coming to market. 4. Certificate of validity - The plaintiff can seek a certificate of validity of the patent from the court stating that the patent was contested and upheld in litigations. The certificate will be transmitted to the patent controller, who must record the same in the register. 5. Costs - Plaintiff can claim reasonable costs for the litigation. This relief may be granted at the discretion of the court.
There are two types of injunctions:-
1. Temporary injunction 2. Permanent injunction
Once the suit is decided in favor of the plaintiff, the court can either award damages or direct the defendant to render an account of profits. Three types of damages can be granted under the act, which is as follows:
1. Direct Damages 2. Indirect Damages 3. Punitive Damages.