India: Patents Comparative Guide

Last Updated: 28 June 2019
Article by Essenese Obhan and Aparna Kareer
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1 Legal framework

1.1 What are the sources of patent law in your jurisdiction?

The Indian Patent Act, 1970 as amended by the Patents (Amendment) Act, 2005, and the Patent Rules, 2003 as amended by the Amendment Rules, 2017 are the primary sources of law governing patents in India.

The manual and various guidelines issued by the Indian Patent Office also govern several aspects of patent law. These include:

  • the Manual of Patent Office Practice and Procedure;
  • the Guidelines for Examination of Patent Applications in the Field of Pharmaceuticals;
  • the Guidelines for Examination of Biotechnology Applications for Patent;
  • the Guidelines for Processing of Patent Applications relating to Traditional Knowledge and Biological Material; and
  • the Revised Guidelines for Examination of Computer-related Inventions.

Additionally, some other statutes indirectly affect patent laws, including:

  • the Patents (Appeals and Application to the Intellectual Property Appellate Board) Rules;
  • the Biological Diversity Act, 2002; and
  • the Protection of Plant Varieties and Farmers' Rights Act, 2001.

Another source of patent law in India is decisions of the Indian courts. Decisions of the Controller General of Patents, Designs and Trademarks and of the Intellectual Property Appellate Board also influence patent law. Occasionally, developments are also influenced by decisions issued in some foreign jurisdictions, such as Europe, the United Kingdom and the United States.

Other sources of patent laws in India include international treaties and conventions such as:

  • the Agreement on Trade-Related Aspects of Intellectual Property Rights;
  • the Paris Convention for the Protection of Industrial Property;
  • the Patent Cooperation Treaty, 1970; and
  • the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure.

1.2 Who can register a patent?

The following parties can apply to register a patent in India:

  • anyone that claims to be the true and first inventor of the invention;
  • the assignee of the person claiming to be the true and first inventor of the invention; and
  • the legal representative of any deceased person who, immediately before his or her death, was entitled to make the application.

A patent in India is registered by the Controller General of Patents, Designs and Trademarks.

2 Rights

2.1 What rights are obtained when a patent is registered?

Upon registration of a patent, the patent owner is granted the following rights:

  • for a patent that claims a product, the exclusive right to prevent third parties from making, using, offering for sale, selling or importing for those purposes that product in India without authorisation; and
  • for a patent that claims a process, the exclusive right to prevent third parties from using that process, and from using, offering for sale, selling or importing for those purposes products obtained directly by that process in India without authorisation.

2.2 How can a patent owner enforce its rights?

Patent owners can enforce their rights by filing suit for infringement against a third party which, without authorisation:

  • makes, uses, offers for sale or sells the product or imports the product in India for use, offer for sale or sale, where the subject matter of the patent is a product; or
  • uses the process, or offers for sale or sells products obtained directly by the process in India, or exports into India a product obtained directly by the process for offering for sale or sale.

2.3 For how long are patents enforceable?

Patents in India are enforceable for a period of 20 years from the date of filing of the application, subject to the payment of renewal fees. For international applications filed under the Patent Cooperation Treaty designating India, this 20-year period is calculated from the international filing date accorded under the Patent Cooperation Treaty.

3 Obtaining a patent

3.1 Which governing body controls the registration procedure?

The procedure for registering patents in India is governed by the Office of the Controller General of Patents, Designs and Trademarks, an office under the Department of Industrial Policy and Promotion, which in turn is under the jurisdiction of the Ministry of Commerce and Industry.

3.2 What is the cost of registration?

The cost for a registering a patent in India depends upon the following factors:

  • the status of the applicant;
  • the number of priorities;
  • the number of claims in the specification;
  • the number of pages in the specification; and
  • the number of sheets of nucleotide sequence/amino acid sequence, where relevant.

The costs of registering a patent in India are set out in the table below.

Particulars Natural person(s) and/or start-up
(INR)
Small entity, alone or with natural person(s) and/or start-up
(INR)
Others alone or with natural person(s) and/or start-up and/or small entity
(INR)
On application for a patent accompanied by provisional or complete specification 1,600 4,000 8,000
For each additional priority claimed 1,600 4,000 8,000
For each sheet of specification in addition to 30, excluding sequence listing of nucleotides and/or amino acid sequence 160 400 800
For each claim in addition to 10 320 800 1,600
For each page of sequence listing of nucleotide and/or amino acid sequence 160
subject to a maximum of 24,000
400
subject to a maximum of 60,000
800
subject to a maximum of 120,000
Request for examination 4000 10,000 20,000
Expedited request for examination 8,000 25,000 6,000
Express request for examination 5,600 14,000 28,000

3.3 What are the grounds to reject a patent application?

A patent application may be rejected on various grounds, as follows.

Substantive grounds: A patent application may be rejected upon various substantive grounds, which include the following:

  • Novelty: If the claims contained in the patent application are not new, or were known to the public before the filing date of the patent application or before its date of priority (where the applicant claims priority from an earlier patent application), the application may be rejected on grounds of lack of novelty.
  • Lack of inventive step: ‘Inventive step' has been defined under the Patents Act, 1970 to mean features of an invention that involve technical advances as compared to existing knowledge, that have economic significance or both, and that make the invention not obvious to a person skilled in the art. If neither of these is present in an application, it stands to be rejected.
  • Lack of industrial applicability: The claims of the application must be such that they can be made or used in some kind of industry. In the absence of such applicability, the application may be rejected. The term ‘industry' for this purpose is widely understood.
  • Non-patentable subject matter: Some subject matter is non-patentable under Section 3 of the Patents Act, 1970. The following are not considered as inventions in India:
    • inventions which are frivolous or which claim anything that is contrary to well-established natural laws;
    • inventions whose use could be contrary to public order or morality, or which cause serious prejudice to human, animal or plant life or health, or to the environment;
    • scientific principles or abstract theories,
    • discoveries of any living thing or non-living substance occurring in nature;
    • new forms of a known substance which do not result in the enhancement of the known efficacy of that substance. Salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substances are considered to be the same substance, unless they differ significantly in their properties with regard to efficacy;
    • mere discoveries of any new property;
    • new uses for a known substance or mere uses of a known process, machine or apparatus, unless the known process results in a new product or employs at least one new reactant;
    • substances obtained by an admixture resulting only in the aggregation of the properties of its components, or a process for producing such substance;
    • the arrangement or re-arrangement or duplication of known devices, each functioning independently of the others in a known way;
    • methods of agriculture or horticulture;
    • all processes for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings, or for the similar treatment of animals to render them free of disease or to increase their economic value or that of their products;
    • plants and animals in whole or in part, including seeds, varieties and species;
    • essentially biological processes for production or propagation of plants and animals;
    • mathematical or business methods, computer programmes per se or algorithms;
    • literary, dramatic, musical or artistic works, or any other aesthetic creations, including cinematographic works and television productions;
    • schemes, rules or methods of performing mental acts or playing games;
    • presentation of information;
    • topography of integrated circuits; and
    • inventions which in effect, are traditional knowledge or which are an aggregation or duplication of known properties of a traditionally known component or components.
  • Sufficiency of disclosure: If the specification for an invention fails to fully and particularly describe the invention, its operation or use and the method, the application may be rejected on grounds of insufficiency of disclosure.
  • Clarity and conciseness of claims: If the claims of the application are not clearly worded so as to render the scope of claims unclear, there is a possibility of rejection.
  • Definitiveness: An application may be rejected if its claims are not definitive and do not contain the technical features of the invention.

Formal grounds: A patent application may also be rejected upon various formal grounds, which include the following:

  • Power of authority has not been submitted.
  • Proof of right for the application has not been submitted.
  • The details of the corresponding applications have not been filed or have not been filed within the prescribed timeframe.
  • A verified English translation of a Patent Cooperation Treaty (PCT) application as published has not been submitted in case of a national phase application, where the PCT application was not published in English.
  • A verified English translation of the priority application has not been filed.
  • A certified copy of the priority application has not been filed.
  • The response to the first examination report was not filed within the prescribed timeframe.
  • The request for examination was not filed on time.

3.4 What programmes or initiatives are available to accelerate or fast track examination of patent applications?

Two avenues are available in India to accelerate or fast-track examination of patent applications, as follows.

Expedited request for examination: This provision is available to a patent applicant only if one or more of the following conditions are met:

  • The patent applicant is a start-up, or was a start-up at the time of filing the patent application; or
  • The patent applicant chose India as an international searching authority or as an international preliminary examining authority in a corresponding PCT application.

The Indian Patent Office (IPO) entertains only a limited number of requests for expedited examination every year. This number is declared at the start of the year and once it is reached, no further requests for expedited examination may be entertained. It is thus recommended that if a patent applicant wishes to file a request for expedited examination, the request be filed at the beginning of the year.

For applications where a regular request for examination has already been filed, if the applicant meets one of the conditions mentioned above, it may convert the request for examination to an expedited request for examination by paying the prescribed fee.

Express request for examination for national phase applications: In the case of national phase applications, an express request for examination may be filed so that the IPO may process the application before the expiry of 31 months from the priority date.

3.5 Are there any types of claims or claiming formats that are not permissible in your jurisdiction (eg, medical method claims)?

The following types of claims/claiming formats are not permissible in India:

  • use claims;
  • claims directed to methods of treatment or diagnosis;
  • second medical use claims;
  • claims directed to plants, animals or parts thereof;
  • claims directed to methods of agriculture or horticulture; and
  • claims that are directed to essentially biological processes for the propagation of plants or animals.

3.6 Are any procedural or legal mechanisms available to extend patent term (eg, adjustments for patent office delays, pharmaceutical patent term extension or supplementary protection certificates)?

There is no procedural or legal mechanism available in India to extend the term of a patent.

3.7 What subject matter is patent eligible?

Under the Patents Act, 1970, ‘invention' is defined as a new product or process involving an inventive step and capable of industrial application. Therefore, any product or process that falls within this definition and that does not fall within the excluded subject matter is eligible for a patent. For a list of inventions not considered patentable in India, please see question 3.3.

3.8 If the patent office does not grant a patent, is an appeal available and to whom?

If the IPO does not grant a patent, an applicant has the following options available:

  • Review of an order of the controller general of patents, designs and trademarks: The applicant may file a review application before the controller within one month of the date on which the original order was issued.
  • Appeal against an order of the controller: The applicant may appeal an order of the controller before the Intellectual Property Appellate Board within three months of receipt of the order.

4 Validity/post-grant review and/or opposition procedures

4.1 Where can the validity of an issued patent be challenged?

The validity of an issued patent may be challenged in three forums:

  • before the Indian Patent Office (IPO), by way of a post-grant opposition within one year of the date of publication of grant of patent under Section 25(2) of the Patents Act, 1970;
  • before the Intellectual Property Appellate Board (IPAB), by way of revocation under Section 64 of the Patents Act, 1970; and
  • before a high court by way of counterclaim to an infringement suit.

4.2 How can the validity of an issued patent be challenged?

The validity of an issued patent can be challenged by the following means.

Type of challenge Where When By whom
Post-grant opposition IPO Within one year of the date of publication of grant of the patent Any person interested *
Revocation proceedings IPAB Any time after grant of the patent Any person interested *
Revocation proceedings in a counterclaim High court/district court After a suit for infringement has been filed Defendant

* Section 2(1)(t) of the Patents Act defines a ‘person interested' as a person engaged in, or in promoting, research in the same field as that to which the invention relates.

4.3 What are the grounds to invalidate an issued patent?

The law provides for separate grounds to invalidate an issued patent, depending on the forum in which the application for invalidation is filed.

The table below lists the grounds for invalidation of a patent during a post-grant opposition before the IPO and those for revocation at IPAB or through a counterclaim at the high court.

Grounds for invalidation during a post-grant opposition before the IPO Grounds for invalidation or revocation at IPAB or counterclaim at the high court
Prior publication in any Indian specification filed on or after 1 January 1912 or in any document published in India or elsewhere. Claim not new with regard to what was publicly known or publicly used in India before the priority date of the claim or claim previously published in any Indian specification filed on or after 1 January 1912 or in any document published in India or elsewhere.
Prior public use or public knowledge in India. Invention secretly used in India before priority date of the claim.
Obviousness: the invention as claimed in any claim of the complete specification is obvious or does not involve an inventive step, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim. Obviousness: the invention as claimed in any claim of the complete specification is obvious or does not involve an inventive step, having regard to what was publicly known or publicly used in India or what was published in India or elsewhere before the priority date of the claim.
Prior claiming in a patent application filed in India with an earlier priority date. Prior claiming in a valid claim of earlier priority date contained in another patent granted in India.
Insufficient description or non-disclosure of method of performing the invention. Insufficient description or non-disclosure of the best method of performing the invention.
Failure to disclose information relating to foreign applications. Failure to disclose information relating to foreign applications.
Non-disclosure or wrong disclosure of source or geographical origin of biological material used for the invention. Non-disclosure or wrong disclosure of source or geographical origin of biological material used for the invention.
Anticipation having regard to the knowledge available within any local or indigenous community in India or elsewhere. Anticipation having regard to the knowledge available within any local or indigenous community in India or elsewhere.
Invention not patentable under the Patents Act. Invention not patentable.
Invention was wrongfully obtained. Patent was wrongfully obtained.
Convention application not made within prescribed timeframe.
Patent owner is not entitled to the patent.
Subject matter of a claim is not an invention.
Invention is not useful.
Scope of claim is not sufficiently and clearly defined or claim is not fairly based on matter disclosed in specification.
Patent was obtained on false suggestion or representation.
Non-compliance with secrecy provision.
Amendment of specification obtained by fraud.

4.4 What is the evidentiary standard to invalidate an issued patent?

The burden of proof rests with the person challenging the validity of the issued patent. In some instances, most commonly on the grounds of insufficiency, the burden may shift to the patent owner.

The standard at the IPO for pre-grant oppositions and post-grant oppositions is that of clear and convincing evidence. The standard at the IPAB and courts is preponderance of evidence.

4.5 What post-grant review or opposition procedures are available for third parties to challenge the validity of a patent?

A third party may challenge the validity of a patent through the following procedures:

  • by way of a post-grant opposition at the IPO, within one year of the date of publication of grant of the patent under Section 25(2) of the Patents Act;
  • by way of revocation proceedings at IPAB under Section 64, at any time during the term of the patent; and
  • by way of a counterclaim to an infringement suit before a high court.

However, the validity of a patent may be challenged by a third party only if it is engaged in, or in promoting, research in the same field as that to which the invention relates.

4.6 Who can oppose a granted patent?

A granted patent can only be opposed by a ‘person interested'. Section 2(1)(t) of the Patents Act, 1970 defines a ‘person interested' as a person engaged in, or in promoting, research in the same field as that to which the invention relates.

A patent can also be revoked by a high court on the petition of the central government, if the court finds that the patent owner has, without reasonable cause, failed to comply with a request of the central government to make, use or exercise the patented invention for the purposes of government within the meaning of Section 99, upon reasonable terms. Revocation of a patent is statutorily possible if the invention relates to atomic energy under Section 65; and in certain cases a patent may be revoked by the central government in the public interest under Section 66.

4.7 What are the timing requirements for filing an opposition or post-grant review petition?

A post-grant opposition must be filed at the IPO within one year of the date of publication of grant of the patent.

A revocation proceeding may be filed at IPAB at any time during the term of the patent.

4.8 What are the grounds to file an opposition?

The grounds for post-grant opposition are as follows:

  • wrongfully obtained patent;
  • prior publication in any Indian specification filed on or after 1 January 1912 or in any document published in India of elsewhere;
  • prior claim in a patent application filed in India with an earlier priority date;
  • prior public use or public knowledge in India;
  • obviousness;
  • unpatentable invention under the Patents Act, 1970;
  • insufficient and unclear description of the invention or method by which it is to be performed in the complete specification;
  • failure to disclose information relating to foreign applications;
  • failure to make a convention application within the prescribed timeframe;
  • non-disclosure or wrong disclosure of source or geographical origin of biological material used for the invention; and
  • anticipation having regard to the knowledge available within any local or indigenous community in India or elsewhere.

4.9 What are the possible outcomes when an opposition is filed?

The three possible outcomes of an opposition are as follows:

  • The patent is maintained;
  • The patent is amended; or
  • The patent is revoked.

4.10 What legal standards will the tribunal apply to resolve the opposition or challenge, and which party bears the burden of proof?

The standard at the IPO for pre-grant and post grant oppositions is that of clear and convincing evidence. The standard at IPAB and the courts is preponderance of evidence.

The burden of proof rests with the person challenging the validity of the patent. In some instances, most commonly on the ground of insufficiency, the burden may shift to the patent owner.

4.11 Can a post-grant review decision be appealed and what are the grounds to appeal?

The decision of the IPO in a post-grant opposition may be appealed to IPAB on the following grounds:

  • incorrect application of law or fact; or
  • violation of principles of natural justice

5 Patent enforceability

5.1 What makes a patent unenforceable?

A patent becomes unenforceable if:

  • the term of the patent expires (Section 53 of the Patents Act, 1970);
  • the patent is surrendered in the prescribed format (Section 63); or
  • the patent is revoked (Sections 64, 65 and 66).

If the patent has ceased to have effect due to non-payment of the renewal fee, it will become unenforceable between the date on which it ceased to have effect and the date of publication of the application for restoration of the patent (Section 62(2)).

Revocation of a patent can occur when an interested person or the central government petitions the Intellectual Property Appellate Board for revocation. Revocation can further be sought by way of a counterclaim in a patent infringement suit before a high court. A patent can also be revoked by a high court, on the petition of the central government, if the court finds that the patent owner has, without reasonable cause, failed to comply with a request of the central government to make, use or exercise the patented invention for the purposes of government within the meaning of Section 99, upon reasonable terms. Revocation of a patent is statutorily possible if the invention relates to atomic energy under Section 65, and in certain cases a patent may be revoked by the central government in the public interest under Section 66.

5.2 What are the inequitable conduct standards?

The doctrine of inequitable conduct standards has not been strictly recognised by the Indian courts. The Patents Act, 1970 provides for revocation of a patent when information is not disclosed by the patent owner during prosecution of the patent application or when false information is furnished.

In addition, non-disclosure of information regarding foreign applications is also considered inequitable conduct that can lead to revocation of the patent, under Section 64(1)(m) read with Section 8.

In Maj (Retd) Sukesh Behl v Koninklijke Phillips Electronics FAO (OS) No 16 of 2014 (2014 SCC OnLine Del 2313), the Delhi High Court, interpreting Section 64(1)(m) read with Section 8, held that the non-disclosure of information or the false representation alleged to be made by the patent owner must be deliberate and intentional to lead to revocation of the patent.

5.3 What duty of candour is required of the patent office?

The duty of candour is statutorily enshrined in Section 8 of the Patents Act, 1970. Section 8 mandates that a patent application be accompanied by a disclosure of information and undertaking regarding foreign applications which may have been filed by the applicant either alone or jointly or where, to its knowledge, such an application is being prosecuted by some other person.

The applicant must provide a statement with detailed particulars of such applications and also an undertaking that until the patent is granted, it will keep the controller general of patents, designs and trademarks informed from time to time of detailed particulars in respect of any other application relating to the same or substantially the same invention filed in any country outside India subsequent to filing of the aforementioned statement.

In Chemtura Corporation v Union of India [2009 SCC Online Del 2634] the court held that as far as Section 8(2) is concerned, the controller may also require the applicant to furnish details relating to the processing of the application in a country outside India, in which case the applicant shall furnish to the controller all information available to it within such period as may be prescribed. This requirement is mandatory, as is further emphasised by the wording of Section 64(1)(j) (which concerns an applicant's failure to disclose to the controller the information required by Section 8 or provision of information which in any manner was false to its knowledge), which indicates that non-compliance could be grounds for revocation of the patent. Obtaining a patent on a false suggestion or representation is also grounds for revocation under Section 64(1)(m).

In F Hoffmann-La Roche Ltd v Cipla Ltd [2015 (225) DLT 391] the court, interpreting Section 8 of the Patents Act, held that non-disclosure of the plaintiff's US patent could not lead to rejection of the plaintiff's suit because it did not cause prejudice and did not fail the test of ‘substantial compliance' with the conditions prescribed by Section 8.

Courts may also refuse to award damages or accounts of profits in cases where the patent specification has been amended after publication of the application, for any use prior to the amendment, if the court is not satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.

6 Patent infringement

6.1 What Constitutes Patent Infringement?

Although the Patents Act does not define what constitutes patent infringement, any contravention of the exclusive rights of the patent owner under Section 48 of the Patents Act will be considered an infringement.

Section 48 reads as follows:

48. Rights of Patentees –

Subject to the other provisions contained in this Act and the conditions specified in section 47, a patent granted under this Act shall confer upon the patentee—

  1. where the subject matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India;
  2. where the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.

6.2 Does your jurisdiction apply the doctrine of equivalents?

the ‘pith and marrow' test.

In Raj Prakash v Mangat Ram Chowdhury (1978) AIR Delhi 1, it was held that the court ought to look at the pith and marrow of the invention. The court also held that a person is guilty of infringement if it makes what is in substance the equivalent of the patented article. It further held that "some trifling or unessential variation" must be ignored.

6.3 Can a party be liable if the patent infringement takes place outside the jurisdiction?

The rights of a patent owner include the right to prevent importation of the patented product or a product directly obtained by the patented process, and to prevent manufacture for export of the product and subsequent sale outside India. A party may thus be liable for patent infringement in either of these situations.

6.4 What are the standards for wilful infringement?

There is no mention of the concept of wilful or intentional patent infringement under the Patents Act. However, Section 111 of the Patents Act states that in a patent infringement suit, damages or an account of profits shall not be granted against a defendant which proves that, at the date of the infringement, it was unaware and had no reasonable grounds to believe that the patent existed. Section 111(4) clarifies that nothing in this section shall affect the power of the court to grant an injunction in any patent infringement suit.

However, in Hindustan Unilever Limited v Reckitt Benckiser India Limited (2005 (30) PTC 3 (Del)), while adjudicating on a case of disparagement through advertisements, the Delhi High Court, dealing with the issue of punitive/exemplary damages, held as follows,

68. …, the defendant clearly was aware about its
wrong doing and the harm which would ensue to HUL because of the published
disparagement. Yet it went ahead and aired it in almost all the national and a large number of regional channels with repetitiveness. The deliberation points at an aim to denigrate the plaintiffs product and harm its reputation. At no stage did it-even in these proceedings-offer to make amends. In the circumstances, the ward of punitive damages was warranted. … Having regard to all these circumstances, the court is of opinion that the award of Rs. 5 lakhs as exemplary damages in the facts of this case was justified and not disproportionate; it is accordingly upheld."

While this judgment does not set out the standard to ascertain wilful infringement of a patent, it did hold that the defendant's conduct amounted to wilful violation of rights and awarded exemplary damages on that basis.

Therefore, wilful infringement of a patent, if proved, could attract punitive damages over and above compensatory damages.

6.5 Which parties can bring an infringement action?

An infringement action can be instituted by either the patent owner or an exclusive licensee. An exclusive licensee can file an infringement action in respect of any infringement of the patent committed after the date of the licence.

In any suit for infringement of a patent by the holder of an exclusive licence, the patent owner shall, unless it has joined as a plaintiff in the suit, be added as a defendant. However, a patent owner so added as defendant shall not be liable for any costs, unless it enters an appearance and takes part in the proceedings. (Section 109(2)).

Further, an assignee in whose favour a registered assignment deed has been executed in compliance with Sections 68 and 69 of the Patents Act also has standing to file suit for infringement.

6.6 How soon after learning of infringing activity must an infringement action be brought?

The limitation period for filing a patent infringement suit is three years from the date of the last infringing act, as determined by the Indian Limitation Act. This three-year period starts to run from the date of the infringing act and not from the date of grant of the patent.

However, undue delay or laches in instituting patent infringement proceedings is a valid defence in patent infringement suits, even if the suit is filed within the limitation period. Reference may be had in this regard to the judgment of the Supreme Court of India in Khoday Distilleries Limited v The Scotch Whisky Association [(2008) 10 SCC 273], the relevant extracts from which are as follows:

"66. Delay would be a valid defence where it has caused a change in the subject matter and action or brought about a situation in which justice cannot be done."

Therefore, it is advisable to take action against a patent infringer at the earliest opportunity, to negate a plea of acquiescence.

Another important point to keep in mind is that if the patent has ceased to have effect due to non-payment of the renewal fee, the patent owner cannot institute proceedings for any infringement committed between the date on which the patent ceased to have effect and the date of publication of the application for restoration of the patent (Section 62(2)).

6.7 What are the pleading standards to initiate a suit?

A plaintiff must be specific when filing a patent infringement suit. The plaint for infringement should state the following essential facts:

  • the names, constitutions and addresses of the plaintiff and the defendant(s);
  • the particulars of the patent, including details of payment of renewal fees;
  • the nature of the plaintiff's title to the patent – that is, whether it is the original grantee and if not, how it has acquired the title and the date of registration of the title;
  • whether the patent has previously been held valid in contentious proceedings;
  • the particulars of the allegedly infringing acts and the particular claims which have allegedly been infringed. These must include the particulars of the specific products, places, time and manner in which the defendant has committed the alleged infringement;
  • any correspondence between the plaintiff and the defendant prior to filing of the suit;
  • the cause of action;
  • the basis for jurisdiction of the court;
  • the court fees payable; and
  • specific prayers for which leave of the court to grant is sought.

The statement of claim should set out all material facts, though it need not be argumentative.

6.8 In which venues may a patent infringement action be brought?

A patent infringement suit may be filed before a district court or a high court with original jurisdiction.

If suit is filed in the district court and a counterclaim for revocation is filed, the matter will be transferred to the high court (proviso to Section 104).

Of the 24 high courts in India, only four have original jurisdiction to try suits: the Delhi High Court, the Calcutta High Court at Kolkata, the Bombay High Court at Mumbai and the Madras High Court at Chennai.

In these four jurisdictions one can file before either the district court or the high court, depending upon the value of the claim. In each of these jurisdictions cases above a specified value vest with the high court and those below such value vest with the district court (see question 6.9).

Section 20 of the Code of Civil Procedure, 1908 further lays down the following additional conditions for determining which court has territorial jurisdiction. A suit shall be instituted in a court within the local limits of whose jurisdiction:

  • the defendant (or all defendants in a case involving multiple defendants), at the time of commencement of the suit, actually and voluntarily resides, carries on business or personally works for gain;
  • any of the defendants (where there are more than one), at the time of commencement of the suit, actually and voluntarily resides, carries on business or personally works for gain – but with leave of the court or the acquiescence to such institution of those other defendants that do not reside, carry on business or personally work there; or
  • the cause of action wholly or partially arises.

6.9 What are the jurisdictional requirements for each venue?

Apart from the territorial jurisdiction conditions mentioned in question 6.8, a suit must be filed in a court that has ‘pecuniary jurisdiction', which refers to the value of the suit. The following pecuniary limits are prescribed by law:

  • The Bombay High Court has original jurisdiction for matters valued at above INR10 million, although there is a carve-out for IP matters which are listed before the Bombay High Court even if they are less than the pecuniary amount. Therefore, all IP matters, including patent matters, may be instituted before the Bombay High Court irrespective of value by virtue of Section 3(c-2) of the Bombay City Civil Court Act, 1948 as amended by the Bombay City Civil Court (Amendment) Act, 2012.
  • The pecuniary jurisdiction of the Delhi High Court is for matters valued at above INR20 million. All suits with a value below this figure must be instituted in the district court.
  • The Calcutta High Court has exclusive jurisdiction in relation to matters valued at above INR10 million. The City Civil Court and the Calcutta High Court have concurrent jurisdiction in relation to matters valued at between INR1 million and INR10 million. All suits valued at below INR1 million must be instituted in the district court.
  • The Madras High Court has original jurisdiction for matters valued at above INR10 million. All suits valued at below INR10 million must be instituted in the district court.
  • All suits to be filed under any other jurisdiction apart from the four high courts mentioned above will necessarily be filed in the district court, irrespective of the value of the suit.

The plaintiff in an infringement suit has considerable freedom in deciding on the value of its claim.

6.10 Who is the fact finder in an infringement action?

There is no jury system in India. The judge is the fact finder in an infringement action. The judge has the power to seek assistance from a ‘scientific adviser' appointed by the court, under Section 115 of the Patents Act, 1970.

6.11 Does the fact finder change based on venue?

As stated in question 6.10, the judge presiding over the case is the fact finder.

6.12 What are the steps leading up to a trial?

The following are the steps leading up to a trial.

Pleadings: A suit is instituted before the appropriate court in the appropriate jurisdiction by the plaintiff. The plaint filed by the plaintiff consists of facts, grounds, claims, arguments and relief sought, along with supporting documentary evidence. The plaint must comply with the Code of Civil Procedure, 1908. If the infringement suit is filed in the commercial jurisdiction of the high courts vested with such jurisdiction, additional requirements prescribed under the Code of Civil Procedure, as amended by the Commercial Courts Act, must be met. The plaint will be accompanied by separate applications seeking relief of temporary injunction or ex parte ad interim injunction, appointment of a local commissioner and other such relief.

The court will consider the applications and issue necessary orders. In exceptional cases the court can order an ex parte ad interim injunction on the first day of the hearing where the plaintiff proves the following, based on the documents available on record:

  • There is a prima facie case;
  • The balance of convenience is in its favour; and
  • Irreparable loss and injury will be caused without an injunction.

Pursuant to institution of the suit, if the court prima facie finds merit in the plaintiff's claims, it can issue a court notice to the defendant to appear before the court on a given date. Thereafter, a copy of the plaint is served on the defendant. On receiving the notice, the defendant can appear before the court and seek time to file a written reply, and may make appropriate applications for suitable relief. The plaintiff may then reply to the defendant in writing.

Admission and denial of documents: At this stage the parties must produce before the court all documents in their possession on which they intend to rely. Thereafter, the parties must notify the court as to whether they admit or deny the documents filed by the other side. Pursuant to this, the court will mark the exhibits accordingly.

Framing of issues: Based on the pleadings filed by both parties, the documents and the preliminary hearing, the court will frame the main issues to be dealt with.

Discovery (optional): Discovery is an optional process whereby a party may obtain information or documents from the opposing party before trial, through a request from the court. At this stage, depositions, requests for admission and requests for the production of documents, objects and entry may be filed.

Evidence: At the evidence stage, the parties must provide evidence and confirm the veracity and genuineness of the same by filing an affidavit to that effect under oath.

Examination and cross-examination of witnesses: Each party shall record witness statements on its behalf. The counsel of other parties are entitled to cross-examine/question the witness. An expert witness may be asked to appear to validate the parties' arguments.

Final arguments: At this stage, each party's counsel presents its case, with supporting arguments, evidence and precedents. Written arguments or submissions may also be provided to the court at the discretion of the court.

Judgment: The court then pronounces its judgment based on the material before it.

6.13 What remedies are available for patent infringement?

Under Section 108 of the Patents Act, the court may grant the following relief in an infringement suit:

  • injunction; and
  • damages or account of profits.

The court may also order that infringing goods and materials and implements which were predominantly used to manufacture the infringing goods be seized, forfeited or destroyed, as the court deems fit under the circumstances, without payment of compensation.

6.14 Is an appeal available and what are the grounds to appeal?

District court decisions may be appealed to the high court.

In suits filed before a high court with original jurisdiction, judgments or orders passed by a single judge of the high court may be appealed to a division bench (two-judge bench) of the same high court. Decisions of the division bench may be appealed before the Supreme Court of India.

The grounds for appeal vary according to each case and the decision that is being appealed. Prima facie, an appeal is preferred if:

  • the verdict is contrary to the factual position;
  • there is an error in law; or
  • the ends of justice are not met.

7 Discovery

7.1 Is discovery available during litigation?

Yes, discovery is available during litigation. The provisions relating to discovery are set out in Order XI – Discovery and Inspection of the Civil Code of Procedure, 1908 and Order XI – Disclosure, Discovery and Inspection of Documents in suits before the commercial division of a High or a Commercial Court of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

Any party to litigation may apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in its possession or power, relating to any matter in question therein.

On hearing such application, the court may either refuse or adjourn the same if it is satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order – either generally or limited to certain classes of documents – as it may, in its discretion, see fit. An order of discovery shall not be made by the court if it is of the opinion that it is not necessary either to dispose fairly of the suit or to save costs.

An objection against production of the document can be made by the other party in a fixed format and by affidavit. Additionally, at any time while the suit is pending, the court may order the production on oath of any document in possession of either party, relating to any question in the suit. Notice to produce documents is issued in a fixed format.

A general principle is that discovery cannot be used for fishing expeditions, so in practice discovery is seldom sought.

7.2 What kinds of discovery are available?

Order XI of the Civil Procedure Code, 1908 recognises three types of discovery:

  • discovery by interrogatories;
  • application for discovery of documents; and
  • inspection of documents referred to in pleadings or affidavits.

Discovery by interrogatories: Any party to a suit with the leave of the court may deliver interrogatories to the opposite parties or any one or more of such parties. No party shall deliver more than one set of interrogatories to the same party without an order for that purpose from the court. Interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on oral cross-examination of a witness.

An objection to answering any interrogatory can be raised on any grounds, including the following:

  • It is scandalous or irrelevant;
  • It is not exhibited in good faith for the purpose of the suit;
  • The matters inquired into are not sufficiently material at that stage; or
  • It is privileged.

An application to set aside interrogatories can be made on the grounds that they have been exhibited unreasonably or vexatiously, and an application to strike out can be made on the grounds that they are prolix, oppressive, unnecessary or scandalous.

Application for discovery of documents: Any party may, without filing an affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in its possession or power, relating to any matter in question therein. After hearing the application, the court may either refuse or adjourn the same if it is satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order – either generally or limited to certain classes of documents – as it may, in its discretion, see fit. Discovery shall not be ordered if the court is of the opinion that it is not necessary either to dispose fairly of the suit or to save costs.

At any time while the suit is pending, the court may order any party to produce on oath any documents in its possession or power that relate to any matter in question in such suit as the court sees fit.

Inspection of documents referred to in pleadings or affidavits: Each party to a suit is entitled, at or before the settlement of issues, to give notice to any other party to permit it to take copies of documents thereof. Any party that does not comply with such notice shall not subsequently be at liberty to present any such document in evidence on its behalf in such suit, unless it satisfies the court that such document relates only to its own title, it being a defendant to the suit, or that it had some other cause or excuse which the court deems sufficient for non-compliance.

7.3 Are there any limitations to the amount of discovery allowed?

The discovery sought must relate to the subject matter therein. The discovery sought should not be scandalous, irrelevant, unreasonable, vexatious or not bona fide, in the opinion of the court.

8 Claim construction

8.1 When during a patent infringement action are claim terms defined by the tribunal?

There is no specific step during an infringement action when claim terms are defined by the IPAB or the courts. However, most judges will try to understand the scope and meaning of the claims, including all terms, before determining infringement. The same was discussed by the high court in F Hoffmann-La Roche Ltd v Cipla Ltd RFA (OS) Nos 92/2012 & 103/2012, as follows:

(xiv) At the beginning of an infringement action the Courts in the United States conduct what is known as a ‘Markman hearing' to define the scope of the claims or to throw light on certain ambiguous terms used in the claims. Although this is not technically done in India but functionally most Judges will resort to a similar exercise in trying to understand the scope and meaning of the claims including its terms.

In the case of (52 F.3d 967 also 517 US 370) Herbert Markman Vs. Westview the Courts held that an infringement analysis entails two steps:-

(a) First step is to determine the meaning and scope of the patent claims asserted to be infringed.

(b) Second step is to compare the properly construed claim with the device accused of infringing.

8.2 What is the legal standard used to define claim terms?

Claims terms are defined on their own terms. The specification is referred to in case of ambiguity in the claims. Extrinsic evidence such as inventor testimony, dictionaries and treaties is used by the courts, but only with caution, as extrinsic evidence is treated as of lesser significance in comparison with intrinsic evidence.

In F Hoffmann-La Roche Ltd v Cipla Ltd RFA (OS) Nos 92/2012 & 103/2012, the high court discussed the aspect of claim construction in detail.

The court referred to 415 F. 3d 1303 Edward H.Phillips Vs. AWH Corporation, which explained that :

"66…In the decision reported as 415 F. 3d 1303 Edward H.Phillips Vs. AWH Corporation it was held that claims have to be given their ordinary and general meaning and it would be unjust to the public, as well as would be an evasion of the law, to construe a claim in a manner different from plain import of the terms and thus ordinary and customary meaning of the claim term is the meaning of the term to a Person Of Ordinary Skill in the Art as of effective date of filing of the patent application. In case of any doubt as to what a claim means, resort can be had to the specification which will aid in solving or ascertaining the true intent and meaning of the language employed in the claims and for which the court can consider patent prosecution history in order to understand as to how the inventor or the patent examiner understood the invention. The Court recognized that since prosecution is an ongoing process, it often lacks clarity of the specification and thus is less useful for claim construction. The Court also recognizes that having regard to extrinsic evidence such as inventor testimony, dictionaries and treaties would be permissible but has to be resorted to with caution because essentially extrinsic evidence is always treated as of lesser significance in comparison with intrinsic evidence."

The court also referred to 457 F.3.1284 (United States) Pfizer Vs. Ranbaxy, where it was held that

"…the statements made during prosecution of foreign applications are irrelevant as they are in response to unique patentability requirements overseas. The Court also held that the statement made in later unrelated applications cannot be used to interpret claims of prior patent."

The court further referring to the judgement of the division bench in FAO (OS) No.190/2013 Merck Vs. Glenmark clarified that "Abandonment of an application cannot remove what is patented earlier nor can it include something that was excluded earlier and that a patent is construed by the terms used by the inventor and not the inventors subjective intent as to what was meant to be covered. Merely because an inventor applies for a latter patent that is already objectively included in a prior patent, but which inventor subjectively feels needs a separate patent application, doesn‘t mean it is to be taken at face value and therefore neither Section 3(d) or abandonment of subsequent patent application can be used to read into terms of prior application, which has to be construed on its own terms."

8.3 What evidence does the tribunal consider in defining claim terms?

Evidence that is considered in defining claims terms was extensively discussed in F Hoffmann-La Roche Ltd v Cipla Ltd RFA (OS) Nos.92/2012 & 103/2012, as discussed in question 8.2.

9 Remedies

9.1 Are injunctions available?

Yes, both preliminary/interim and permanent injunctions are available.

Preliminary/interim injunction: While a suit is pending, a plaintiff can apply for an interim injunction. At this stage, there is no examination or cross-examination of witnesses. Based on the documents and pleadings, the court can restrain a defendant pending final adjudication of the suit.

Indian courts follow the yardsticks laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL, in which the House of Lords formulated the following three questions for granting an injunction:

  • Is there a serious question to be tried?
  • If the answer is ‘yes', would damages be an adequate remedy for a party injured by the court's grant of, or failure to grant, an injunction?
  • If not, where does the balance of convenience lie?

In UPL Limited v Pradeep Sharma [2018 SCC Onine Del 7315] 2018 the Delhi High Court followed the yardsticks laid down by precedent in granting an interim injunction. The plaintiff held three registered patents for a herbicidal composition. Upon learning that the defendants had applied for registration under the Insecticides Act 1968 for a composition which was the same as that covered by its patents, and were participating in a government tender for the manufacture of the same, the plaintiff filed an infringement suit. The court found that the defendants were unable to demonstrate the invalidity of the suit. It further took note that a pre-grant opposition to the suit had already been dismissed by the Intellectual Property Appellate Board and a settlement had been reached in a writ petition. Hence, the court held that the plaintiff had made out a strong prima case in its favour and the balance of convenience also lay in its favour. Consequently, the court granted an interim injunction against the defendants, restraining them from dealing in any product which infringed the plaintiff's registered patents. It further observed that grant of the interim injunction would not cause loss or irreparable harm to the defendants, as their product was yet to be launched.

In Merck Sharp and Dohme Corp v Vinod Jadhav (15 December 2017 - DELHC) 2017 SCC OnlineDel 12549, the court found that the plaintiff – the holder of a registered patent for the drug Sitagliptin – had made out a prima facie case in its favour. It also found that the balance of convenience lay in favour of the plaintiff. On this basis, the court granted an interim injunction against the defendant, thereby restraining it from selling the infringed product.

Permanent injunction: Upon completion of trial or in an application for summary judgment, the court – after perusing the pleadings, the evidence on record and the arguments addressed by all parties – may grant a permanent injunction against the defendant.

9.2 What is the standard to obtain an injunction?

The following conditions must be met to obtain an injunction:

  • The patent is prima facie valid;
  • There is prima facie infringement on the part of the defendant;
  • The balance of convenience lies in favour of grant of the injunction; and
  • The patent owner will suffer an irreparable injury if the injunction is not granted.

9.3 Are damages available?

Yes, under Section 108 of the Patents Act, damages or an account of profits may be awarded in an infringement action. However, there are certain restrictions on the award of damages under Section 111. Damages or account of profits shall not be granted if the defendant proves that, as of the date of the infringement, it was unaware and had no reasonable grounds to believe that the patent existed.

9.4 What types of damages are available?

The Indian courts broadly recognise two types of damages – compensatory/actual damages and punitive damages.

Compensatory/actual damages: Compensatory damages are awarded when the plaintiff proves infringement by the defendant and actual loss to the plaintiff.

Punitive damages: Punitive damages are awarded where wilful infringement and criminal propensity are proved. The burden of proof rests with the plaintiff.

9.5 What is the standard to obtain certain types of injunctions?

The following conditions must be met to obtain an interim injunction:

  • The patent is prima facie valid;
  • There is prima facie infringement on the part of the defendant;
  • The balance of convenience lies in favour of grant of the injunction; and
  • The patent owner will suffer an irreparable injury if the injunction is not granted.

9.6 Is it possible to increase or multiply damages due to a party's actions?

Punitive damages are awarded where wilful infringement and criminal propensity are proved. The burden of proof rests with the plaintiff.

9.7 Are sanctions available?

No.

9.8 What kinds of sanctions are available?

Not applicable.

9.9 Can a party obtain attorneys' fees?

Section 35 of the Code of Civil Procedure, 1908 provides for the award of costs to the successful party in litigation. A special amendment for commercial disputes of a specified value was introduced in 2016, which provides that ‘legal fees and expenses incurred' will be covered as per Explanation (ii) of Section 35(1) of the Civil Code of Procedure.

9.10 What is the standard to obtain attorneys' fees?

Not applicable.

10 Licensing

10.1 What patent rights can a party obtain through a licence?

The rights that a party obtains through a licence will depend on the type of licence agreement entered into between the patent owner and the licensee, as follows.

Exclusive licence: An exclusive licence grants the licensee, and persons authorised by it, all rights in respect of the patented invention to the exclusion of all other persons (including the patent owner).

Non-exclusive licence: The rights that are obtained through a non-exclusive licence will depend on the terms and conditions of the licence contract as agreed between the licensee and the patent owner.

10.2 What limits can a patent owner impose on a licence?

The patent owner can include the following limits, among others, in a licence agreement:

  • the geographical areas for which the licence is granted;
  • the duration of the licence; and
  • any rights to sub-license the patent.

However, the Patents Act prohibits the patent owner from including certain restrictive conditions in a licence to manufacture or use a patented article, or in a licence to work any process protected by a patent. Conditions with the following effect shall be void:

  • that require the purchaser, lessee or licensee to acquire from the vendor, lessor or licensor, or its nominees, or that prohibit it from acquiring or restrict in any manner or to any extent its right to acquire from any person, or that prohibit it from acquiring except from the vendor, lessor or licensor or its nominees, any article other than the patented article or an article other than that made by the patented process;
  • that prohibit the purchaser, lessee or licensee from using or that restrict in any manner or to any extent the right of the purchaser, lessee or licensee to use an article other than the patented article or an article other than that made by the patented process which is not supplied by the vendor, lessor or licensor or its nominee;
  • that prohibit the purchaser, lessee or licensee from using or that restrict in any manner or to any extent the right of the purchaser, lessee or licensee to use any process other than the patented process; or
  • that provide for exclusive grant-back, prevention of challenges to the validity of the patent or coercive packaging licensing.

11 Antitrust

11.1 Are there any limits on patent protection due to antitrust laws?

A 30 March 2016 judgment passed by Justice Vibhu Bhakru in a writ filed by Ericsson against CCI, order dated 16 January 2014 (WP (C) 1006 of 2014), dealt with issues of patent rights and competition law.

The judgment confirms that there is no inconsistency between the Patents Act and the Competition Act. Both statutes operate in different domains. While the Patents Act deals with the grant of rights to inventors in areas of technology, the Competition Law prohibits anti-competitive agreements and arrangements that result in the concentration of market power with one entity (para 144 at p111). Therefore, the ambit of competition law cannot whittle down the scope of any other law, including the Patents Act (para 147 at p113).

Issues relating to a patent owner's unwillingness to grant a licence to a prospective willing licensee on reasonable terms are dealt with by the controller general of patents, designs and trademarks within his powers under the Patents Act on the grant of compulsory licences (para 159 at p119). However, the nature of an agreement, which is challenged as anti-competitive will be assessed under competition law (para 172 at p128).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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