| A patent confers the exclusive right on the | | | | transferred to the High Court for decision |
| patentee to make, distribute or sell the invention | | | | because High Court has the jurisdiction to try |
| in India. An infringement would be when any of | | | | cases of revocation. Section 104A provides for |
| three rights is violated. A patentee may assign | | | | burden of proof in case of suits concerning |
| license all or some of these rights. The exercise | | | | infringement. |
| of the rights so transferred in favour of the | | | | The procedure followed in conducting a suit for |
| assignee or the licensee by the assignor or the | | | | infringement is governed by the provisions of |
| licensor would not amount to infringement of the | | | | code of civil procedure . |
| patents india. | | | | When a suit can be instituted |
| In case of a product patents rights of the | | | | A suit for infringement can be instituted only after |
| patentee are infringed by any one who makes or | | | | the patent has been sealed. When a specification |
| supplies that substance commercially. In case of a | | | | has been accepted and published i.e., during the |
| process patent , the use of such a method or | | | | period when opposition has been called and is |
| process in India by anyone other than the | | | | being decided, the applicants cannot institute a suit |
| patentee amounts to infringement. | | | | for infringement, but damages sustained due to |
| Whether the act of a person other than the | | | | the infringement, committed during the period i.e., |
| patentee amounts to infringement or not would | | | | between the date of publication of acceptance of |
| depend upon: | | | | complete specification and the date of grant may |
| (i) The extent of the monopoly right conferred by | | | | be claimed in another suit; a separate suit for |
| the patent which is interpreted from the | | | | damages but not suit for infringement. |
| specification and claims contained in the application | | | | When the term of the patent has expired and |
| of the patentee. Any action which falls outside the | | | | infringement occurred during the term of the |
| scope of the claims would not amount to | | | | patent, a suit can be instituted during the term of |
| infringement. | | | | even after the expiry of the term. |
| (ii) Whether he is infringing any of the monopoly | | | | In case a patent had lapsed and was |
| rights in the patentee to make, or sell the | | | | subsequently restored, committed between the |
| invention. | | | | date on which the patent ceased to have effect |
| What can amount to infringement | | | | and the date of publication of application for |
| (1) The colourable imitation .of an invention. | | | | restoration. |
| (2) Immaterial variation in the invention. | | | | When a patent was obtained wrongfully by a |
| (3) Mechanical equivalents. | | | | person and later granted to the true and first |
| (4) Taking essential features of the invention. | | | | Inventor, no suit for infringement can be instituted |
| All the above acts often overlap each other when | | | | for any infringement occurring before the period |
| an infringement of a patent or process occurs. | | | | of such grant to the true and first inventor. |
| A colorable variation or immaterial variation | | | | The plaintiff (person who makes a plaint, i.e., |
| amounting to infringement is where an infringer | | | | institutes a suit) is not obliged to give a notice to |
| makes slight modification in the process or | | | | the defendant (infringer) before instituting a suit. |
| product but in fact takes in substance the | | | | Court will issue a notice. |
| essential features of the patentee's invention. | | | | Period of limitation Patent India |
| Infringement by mechanical equivalents would | | | | The period a limitation for instituting a suit for |
| occur when he uses mere substitutes for those | | | | patent infringement is three years from the date |
| features so as to get the same result for the | | | | of infringement. |
| same purpose as obtained by the patentee. | | | | Who is entitled to sue |
| Action of Infringement | | | | Only the person who has a right in the patent can |
| Whenever the monopoly rights of the patentee | | | | institute a suit for infringement. The following |
| are violated, his rights are secured again by the | | | | persons are entitled to sue:- |
| Act through judicial intervention. The patentee has | | | | (1) The patentee. |
| to institute a suit for infringement. The relief's | | | | (2) The exclusive licensee if the license is |
| which may be awarded in such a suit are - | | | | registered. |
| (1) Interlocutory/ interim injunction. | | | | (3) A compulsory licensee when the patentee |
| (2) Damages or account of profits. | | | | refuses or neglects to institute proceedings. |
| (3) Permanent injunction. | | | | (4) A licensee other than the above two licensees |
| Where a suit is to be instituted | | | | can bring an action for infringement upon the |
| Section 104 of the Act provides that a suit for | | | | terms of the contract between the licensor and |
| infringement shall not be instituted in any court | | | | licensee. |
| inferior to a District Court having jurisdiction to try | | | | (5) Assignee, he can sue only after the application |
| the suit. In appropriate cases where the High | | | | for registration of the assignment in his favour |
| Court has original jurisdiction to try the suit. The | | | | has been filed. If a patent is assigned after the |
| suit shall be instituted in the High Court. when an | | | | commencement of action, the assignee is to be |
| action for infringement has been instituted in a | | | | joined as a co-plaintiff. An assignee cannot sue for |
| District Court and the defendants make a counter | | | | infringement which occurred prior to assignment. |
| claim for revocation of the patents, the suit is | | | | |