A patent gives an exclusive right to the patentee to prevent his invention from the act of making, using, offering for sale, selling or importing such invention by third party without his consent. Any party indulging in any such acts violates the monopoly rights of the patentee which constitute infringement of a patent. The patent owner can enforce his rights by filing a suit for infringement against the third party in the competent court.
What amounts to Infringement?
The Patent Act, 1970, does not enumerates the activities which amounts to infringement. However, section 48 of the Act confers upon the patentee the exclusive right to prevent his product or process from any third party from making, using, offering for sale, selling or importing in India the patented product or process without the consent of the patentee.
Third party can only use the patent by obtaining the license from the patentee or by taking his consent. Using the patent without obtaining the required license or consent would amount to infringement.
What does not amount to Infringement?
The importing or making or using of the patent (either product or process) by or on behalf of the Government for the purpose merely of its own use does not amount to infringement.
If the patent is in respect of any medicine or drug, the medicine or drug may be imported by the Government for the purpose merely of its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the Government.
Experiment and Research
Use of any patent (either product or process) for the purpose merely of experiment or research including the imparting of instructions to pupils.
Patented invention used on foreign vessel
If a foreign vessel which is using a patented invention comes to India, temporarily or accidentally it shall n be constituted as an infringement.
Required under Law
Any act of making, constructing, using, selling or importing a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, use, sale or import of any product;
Importation of patented products by any person from a person who is duly authorised under the law to produce and sell or distribute the product, shall not be considered as an infringement of patent rights.
If the patent has been infringed, then the patentee may file a suit in the competent court. Section 104 of the Patent Act provides for the jurisdiction of the court.
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.
The 4 high courts in India namely, the Delhi High Court, the Calcutta High Court at Kolkata, the Bombay High Court at Mumbai and the Madras High Court at Chennai have an original jurisdiction to try the suits for infringement. A person can directly file the suit for infringement in these courts depending upon the value of the claim.
Section 20 of the Code of Civil Procedure, 1908 provides for the territorial jurisdiction for filing a suit.
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.
Following is the pecuniary limits that are prescribed by law for filing the suit for infringement:
- The Bombay High Court has original jurisdiction for matters valued at above INR 1 crore.
- The pecuniary jurisdiction of the Delhi High Court for matters valued at above INR 2 crores.
- The Calcutta High Court has original jurisdiction for matters valued at above INR 1 crore.
- The Madras High Court has original jurisdiction for matters valued at above INR 1 crore.
If the value of the suit is less than the abovementioned prescribed value then, the suit will necessarily have to be filed in the district court.