India: Penalties And Reliefs Under Patents Act

Last Updated: 18 July 2017
Article by Aayush Sharma

Most Read Contributor in India, July 2017

Chapter XX [Sections 118-124] of the Patents Act, 1970, deals with the provisions of penalties. Various parameters have been laid down by the Patent office to impose penalties on any act which were forbidden by Patent law. These penalties are in form of either fine, imprisonment or both. Parameters such as providing false information to patent office, unauthorized claims of Patent rights, failure to furnish information related to working of patent, wrongful use of word patent office, practice by unauthorized person i.e. non patent agents, offence by companies etc. Further, we will also discuss regarding the reliefs in an action for infringement as defined under section 108 of the Patents Act, 1970.

  • Contravention of secrecy provisions relating to certain inventions: In this case, if any person fails to comply with the directions given under section 35 or makes an application for grant of Patent in contravention of section 39 of the Patents Act, 1970, then he shall be liable for punishment with imprisonment for a term of which may extend to 2 years or fine or with both.
  • Falsification of entries in register, etc: If any person makes false entry in the register of Patent, or writing falsely purporting to be a copy of an entry in such a register, knowingly or unknowingly, he shall be punishable with imprisonment for a term which may extend to 2 years or fine or with both.
  • Unauthorized claim of Patents rights: If any person falsely claims or represent any article sold by him is patented in India or if the article is stamped, engraved or impressed on or otherwise applied to, the article the word "patent" or "patented" or some other word expressing or implying that the patent of the article has been obtained in India or; that an article is the subject of an application for a patent in India, or if the article is stamped, engraved or impressed on or otherwise applied to, the article the word "patent" or "patented" or some other word expressing or implying that the patent of the article has been made in India, he shall be punishable with fine which may extend to 1-lakh rupees.
  • Wrongful use of words "patent office": If any person uses on his place of business or on any of the document issued by him the word patent office or in any other way which would lead to belief that his place of business or document issued by him are related to or connected with the patent office, then such offence shall be punishable with imprisonment for a term which may extend to 6 months or with fine, or with both.
  • Refusal or failure to supply information: In any case, if the person fails to furnish or refuses any information which is false, and which he either knows or it does not believe to be true, as required by the central government under section 100(5) of the Patents act, 1970 or any information related to working of patents which is require to be furnished under section 146 of the Patents Act, 1970,

    He shall be punishable with fine which may extend to 10-lakh rupees or in case of providing false information as required under section 146, the offence shall be punishable with imprisonment which may extend to 6 months or with fine, or with both.
  • Practice by non-registered patent agents: If any person contravenes the provisions of section 129, he shall be punishable with fine which may extend to 1-lakh rupees in first offence and 5-lakh rupees in second offence.
  • Offence by companies: If any company as well as every person in charge of, and in responsible to that company found responsible for the conduct of his/ their business at the time of commission of the offence shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Relief in an action for infringement:

Section 108 of the Patents Act, 1970 provides the reliefs which a Court may grant in any suit for infringement include an injunction subject to such terms, if any, as the court thinks fit and damages or an account of profits. An order for delivery or destruction of infringer's articles may also be passed. 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, as the Court deems fit under the circumstances of the case without the payment of any compensation.

INJUNCTION:

An injunction is an order of a Court prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. Generally it is a preventive and protective remedy aimed at preventing future wrongs. Mainly injunctions are of two kinds:

1. Temporary/Interlocutory injunctions,

Temporary injunctions are the Court orders which are in force for a specified time or until further orders of the Court. An interlocutory injunction may be granted at any time during the proceedings of the suit. The plaintiff may, at the commencement of the suit or any time during the suit, move the Court for grant of an interim injunction to restrain the defendant from committing and continuing to commit the acts of alleged infringement.

2. Final/Permanent Injunctions.

Final/permanent injunctions are such injunction which is granted at the termination of the trial. The time for which the final injunction is in force is the remaining term of the patent at the time of grant of final injunction.

DAMAGES OR ACCOUNTS OF PROFITS:

A successful plaintiff in a suit for infringement is entitled to the relief of damages or account of profits. However both reliefs cannot be granted together. There are certain cases when damages or account of profits cannot be granted. In a suit for infringement of a patent, damages or an account of profits shall not be granted against the defendant who proves the infringement was innocent and that at the date of the infringement the defendant had no reasonable grounds for believing that the patent existed.

Section 108 provides that the Court may either award damages or account of profits but both of them cannot be claimed together. The plaintiff has to prefer either of the two. The account of profits is determined on the basis of actual use of the patentee's invention by the infringer during the period of commission of the act of infringement. Account of profits is the part of profits which can be attributed to the use of the patentee's invention by the infringer.

CONCLUSION

Penalties have been introduced in the Patents Act to safeguard the interest of Patent from the illegal activities. Till now we haven't seen any case where patent office has issued penalties or found guilty in doing any misdeed as defined under the act. These penalties are in form of fine or imprisonment or both.

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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