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Esheta Lunkad   18 September 2020

Hello Sir,

From what I understood, you want to know about infringement of Patents.

Sir, Patent infringement means the violation of the exclusive rights of the patent holder. Patent rights are the exclusive rights granted by the government to an inventor over his invention for a limited period of time, wherein the holder can sell, make license or assign his patented invention. Section 48 of the Indian Patent Act confers this right upon the patentee to exclude and prevent third parties who do not have his consent, from any act of making use, offering for sale or importing for those purposes the patented product or product obtained by the patented process in India. In other words, if any person exercises the exclusive rights of the patent holder without his permission then that person is liable for patent infringement. Sections 104-114 of the Act provide guidelines relating to patent infringement.

The Act, does not specifically enumerate as to what constitutes an infringement but on contrary enlists the acts, which are not considered as infringement under Section 107A.

1. An act of making, constructing, using or selling or importing a patented invention solely for the use of research, development and submission of information required under the law for the time being in force in India or in country other than India that regulates the manufacture, construction, use, sale or import of any product.
2. Importing of patented product by any other person, from a person who is duly authorized under the law for producing, selling or distributing the product often termed as 'Parallel Import'.

Initiating Infringement Suits:

As per Section 104 of the Act, a patent holder can file a suit for infringement in the District Court or the High Court. However, in cases where a counter-claim for the revocation of the patent is made by the defendant the suit along with the counter claim claim is transferred in the High Court.

When the subject matter of the suit is a product, the burden proof is on the plaintiff to prove that his product has been infringed. There are certain exceptions from infringement under the Act. Section 104A shifts the onus on the  defendant if the patent is a process to prove that the process used by him is obtaining an identical product to the product produced by the patented process is and the process is different from the patented process, only if the patentee or a person deriving title or interest from him proves that the product is identical to the product obtained by the alleged invention.

The Act prescribes following remedies in case infringement of a patent is proved:
a. Interim injunction
b. Damages or account of profit
c. Permanent Injunction

Section 107, of the Act prescribes following Defenses:
a. Any of the grounds available for revocation of patent under section 64 of the Act
b. In a suit for infringement by making, using or importation of any machine, article or by using of any process or by the importation, use or distribution of any medicine or drug, that such an act was done in accordance with conditions specified under Section 47 of the Act. 

I hope this helps.

Regards,
Esheta Lunkad

1 Like

Str sundaram   05 October 2020

Thanks for valuable comments

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