The Indian Patent Act, 170 provides protection to the patentee or patent holder against their inventions. The act provides an exclusive right to the patent holder to prevent its invention from any kind of infringement through any unauthorized use of the invention. It protects patent holders against commercial using, exploiting, making, offering for sale, selling or importing for sale and use by any third person. The patent holder can enjoy his invention for the period of twenty years from the date of filing of the patent application.
What does not amount to Patent Infringement in India?
There are certain exceptions to the patent infringement in India. The Patent Act lists certain activities that will not amount to an infringement. These statutory exemptions from infringement are as follows-
Experimental or Research Use
Section 47(3) of the Act ensures that the inventions that are used for research and experimental purposes, will not amount to infringement. There is no limitation to the scope and extent of research and experimentation.
Use or Acquisition of Invention by Government
Patents in India are granted with some prior condition set by the government, and the same does not amount to infringement. The Bombay High Court had discussed the scope of government use under section 47 in a case of Garware Wall Ropes Ltd. V. AI Chpra Engineers and contractors.
Use of Patented Invention in a Foreign Vessel
According to section 49 of the Act, if the patented invention is used by a foreign vessel which comes in India then it would not amount to infringement. However there is a proviso to the section which says that the patented invention which is on board with the forsign vessel cannot be used in India for any commercial purpose.
Parallel Imports
According to section 107A(b) of the Act, it says that importation of patented products by any person who is duly authorized to produce, sell and manufacture the product, shall not be considered as an infringement of patent rights.
Compulsory Licensing
The reason behind compulsory licensing in India is that the general public can have access to the patented invention in India at an affordable rate. Compulsory licensing can be provided to the patented invention in circumstances such as non-availability of the patented invention to the public at a reasonably affordable price, non-satisfaction of reasonable requirement of the public, public health, national emergency, or in case of an extreme emergency. Till date there is only one case of compulsory licensing which is successfully granted i.e. Natco Pharma Ltd. V. Bayer Corporation.
It is pertinent to note that, any case except the conditions stated above will amount to infringement of a patent as will be considered as a cause of action for filing a suit in a court.
Jurisdiction for Patent Litigation Matters in India
Any person who is willing to initiate a patent suit against another person whether it is for infringement, declaration or seeking any relief shall do so in a district court having jurisdiction to try that suit. His term district also includes the High court under the CPC.
The suit can be filed either in a district forum or a High court having ordinary civil jurisdiction. The person has to meet the territorial jurisdiction as well as the pecuniary jurisdiction of the court before initiating the suit. The pecuniary jurisdiction is calculated based on the valuation of the suit.
Patent holders invest large amounts of money in research and development of their invention, and the only way to gain returns for their investment is by getting exclusive commercial rights over the same. Therefore, it was crucial for India to set up a proper adjudicating bodies for the purpose of protecting the patent rights, by laying down law for patent infringement. The law keeps changing as per the improvement and introduction of new inventions are growing in the market.
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