Introduction

Patent is a type of intellectual property granted by the patent authority to the inventor for a limited
period of time for exercising monopoly over his specific innovation. A patent is considered to be an
exclusive monopoly right as it excludes others from using, selling, distributing the invention of
innovators. Patent Infringement is illegal as it violates the exclusive right of the patent holder. It is
crucial for individuals and companies to be aware of patent laws and the consequences of patent
infringement. It is important to take steps to protect one’s own patents, as well as to avoid infringement
of the same by others. With technology rapidly advancing, it has become increasingly important to
understand the complexities of patent infringement and how it affects innovation and progress. This
article aims to reflect the same.

Types of patent infringement

Classification of patent infringement have been discussed hereunder.

Direct infringement

Direct infringement is a most common and obvious form of patent infringement. When a third party
without the permission of the patent holder:

 Commercially uses the invention.

 Reproduces the invention.

 Import a protected idea/ invention in India.

 Selling patented inventions.

 Offer to sell patented inventions.

Direct infringement can either be intentional or unintentional during the term of patent. Only
requirement to be fulfilled is the performance of a substantially deceptive function of an invented
product without obtaining a legal licence from the owner for the usage. For example, Samsung started
using the same manufacturing process as the Apple company for making phones, without taking
permission. This is a direct infringement of a patent existing on the product, owned by the Apple
company.

Literal infringement

Literal infringement is a type of direct infringement in which each and every element or composition
protected by either product or process patent is copied, in other words, a replica of the original product
is used, manufactured, sold or imported.

In the case of Polaroid Corp. vs. Eastman Kodak Co (1986), Polaroid claimed that Kodak had violated its
patent right related to instant photography. The central dispute revolved around Kodak’s instant
photography system, which Polaroid argued had utilised its patented technology. Polaroid believed that
four of its patents related to instant photography, including the process of developing an instant image
and the instant camera itself, were infringed by Kodak. After a prolonged trial, the court ruled in favour
of Polaroid, determining that Kodak had indeed infringed upon Polaroid’s patents. As a result, Kodak
was ordered to stop the production and sale of its instant photography system and Polaroid was
awarded substantial damages.

Non-literal infringement

Non-literal infringement is also recognised by the name of Doctrine of Equivalence. In this type of
infringement, the alleged invention has to pass through the “Triple Identity Test”. This means when an
invention is similar to the patented invention hence performing significantly the same function, in the
same way and producing the same result, may even differentiate in name, shape or form, that invention
will be said to have caused non-literal infringement of the previously patented invention.

In the landmark case of Ravi Kamal Bali vs. Kala Tech. & Ors (2008), the plaintiff was granted patent for
‘tamper lock/seals’ and the defendant constructed a similar kind of product by the name of ‘Seal Tech’,
which had the similar functional features as the plaintiff’s lock. The court of law had applied the Doctrine
of Equivalence, and gave the decision in favour of the plaintiff stating that both the products had exactly
the same function and also was made up from the same material with the only slight differentiation was
of construction which did not constitute an innovation.
Indirect infringement

Indirect infringement occurs when a third party supports, contributes or promotes the direct
infringement. The infringement can either be accidentally or knowingly.

Induced infringement

Induced infringement involves wilful aiding of the infringing process, with or without any intention to
infringe. In either case, the infringer shall be held liable for infringement. The aiding can be in the form
of:

 Assisting in manufacturing of the product.

 Assembling the patented product without proper licence.

 Providing instructions to third parties on production of product.

 Printing the instructions of patented items and selling them.

 Licensing plans or processes.

Contributory infringement

Contributory infringement is a kind of indirect infringement in which the infringer sells or supplies the
parts of a product used exclusively to manufacture the patented products. The infringer is held liable
even if he doesn’t actively participate in the manufacturing process.

Wilful infringement

Wilful infringement occurs when someone disregards the patent invention voluntarily. The burden of
proof in this case lies on the patent holder. The infringer can take the defence of legal opinion
thoroughly in writing. Three step process for willful infringement are:

 Knowledge about the patented invention,

  Good faith belief that the infringer wouldn’t be liable for patented invention,

 Infringer’s belief is reasonable.

If the wilful infringement is proved, the court can order strong deterrents (3 to 4 times of actual
damage), inclusive of court costs, lawyer’s fees etc.

Burden of proof

The burden of proof in patent infringement originally lies upon the patentee (the plaintiff).
However, TRIPS amended the Patents Act, 1970 by insertion of Section 104A thereby introducing the
concept of “reversed burden of proof”. This signifies that if the subject matter of patent is a process and
results to;

1. A new product, and

2. There is substantial likelihood that an identical product is made by the same process and the
patentee, despite reasonable efforts, failed to determine the process.

Then the burden of proof is on the defendant to prove the non-infringement.

Doctrines related to patent infringement

Doctrine of equivalents

Doctrine of equivalents is a legal rule that is applied to find out the patent infringement. The doctrine
classifies even a minor change to the product as an infringement. In simple words, if the infringed
product performs significantly the same function, in the same way and produces the same result, then it
shall lead to patent Infringement under the doctrine of equivalents.

Limitations to the doctrine of equivalents

1. All elements rule: All the elements of a patented product should be present in the infringed
product.

2. Doctrine of public dedication: This doctrine is applicable when a patentee discloses publically
the subject matter of patent but does not claim it. Anyone can then use it without fear of
infringement.

3. Existence of prior art: Invention already publicly available and known, before filing of the patent
application signifies existence of prior art. In other words, the invention is not unique or exists
already in some form.

4. Prosecution of history estoppel: Also known as File-Wrapper Estoppel, it arises as a legal

defence to infringement. It applies where a patent application amends or cancels a claim
rejected by the Patent Office as unpatentable based upon prior art.

In the landmark case of Graver Tank vs. Linde Air (1950), the disputed patented formulation was a
mixture of alkaline earth metal silicate (using magnesium) and calcium. The accused used manganese,
and silicate but not any alkaline earth metal. Experts stated that manganese served the purpose of
magnesium and was equivalent to it. In this case, the court had opined that “a person reasonably skilled
in his work would have known of the replaceable element“. Interchanging of magnesium with
manganese was obvious to anyone working in the same field and was an insubstantial change. Therefore
the court upheld the finding of patent infringement under the doctrine of equivalents.

Doctrine of colourable variation

The doctrine is derived from a latin maxim, “Quando aliquid prohibetur ex directo, prohibetur et per
obliquum” which means “what cannot be done directly, should also not be done indirectly”. According to
this doctrine, the practice of making minor changes to a patented invention in order to invade the
patent infringement claims, is substantially considered to be the same as the patented invention, even
though it may have some apparent differences. This means that an infringer cannot neglect liability by
making minute changes to the patented invention. Some of the factors considered by court in order to
decide whether a variation is colorable or not are provided hereunder:

1. The extent of resemblance between the alleged invention and the accused product or process.

2. The degree of distinction between the two products or processes.

3. The aim or intended usage of the accused product or process.

4. The competency level of the relevant industry at the time the patent was in use.

5. The level of difficulty involved in creating the accused product or process

6. The level of certainty in the relevant industry.

7. The degree of self-creation or prior knowledge.

8. Proof of Copying or other methods of direct violation of patent infringement.

The case of Pfizer Inc. vs. Cadila Healthcare Ltd (2020), involves a dispute over the patent for the anti-
inflammatory drug Celecoxib. Pfizer alleged that Cadila’s generic version of the drug infringed Pfizer’s
patent, but Cadila argued that its product was different from Pfizer’s product and therefore did not
infringe the patent. The Supreme Court of India found that Cadila’s product was a colorable variation of
Pfizer’s product, and amounted to infringement.

What acts do not amount to patent infringement

There are several acts that does not amount to infringement-

1. Independent invention: The impugned product or process was independently developed by the
accused party, without any reference to or use of the claimed invention of the patent. To prove
independent invention, the accused party typically needs to provide evidence of their invention,
such as records of their development activities, laboratory notebooks, or testimony from
witnesses. This evidence should demonstrate that the accused party was working on the same
problem as the patent holder and arrived at the same solution independently and without
reference to the claimed invention of the patent.

2. Patent expiration: When a patent expires, the inventor’s exclusive rights to the invention are no
longer in effect and anyone may use the invention without infringing the patent.The term of a
patent is typically set by law and is typically 20 years from the filing date of the patent
 application. After the patent has expired, the claimed invention becomes part of the public
domain and can be freely used by anyone without fear of infringing the patent.To prove that the
patent has expired, the accused party can typically provide evidence of the filing date of the
patent and the relevant patent law to demonstrate that the patent has reached the end of its
term.

3. Research and experimentation: Experimental use of a patented invention for the purpose of
testing or evaluating it is not considered infringement. In other words, the accused party is
claiming that they were using the claimed invention to test and evaluate its performance, and
that they did not intend to sell or otherwise commercially exploit the invention.

4. Government use: In many countries, the government has the right to use a patented invention
without infringing the patent for the purpose of fulfilling its responsibilities and providing
services to the public. The accused product or process is used by or on behalf of the government
and is therefore not subject to the patent. This defence is based on the idea that the
government should have the right to use patented inventions for various public purposes, such
as for national security or for the provision of essential services, without being subject to
infringement claims.

5. Prior use: If a person has been using a patented invention before the patent was granted, they
may be able to continue using it without infringing the patent, depending on the laws of the
relevant jurisdiction. To prove prior use, the accused party typically needs to provide evidence
of their use of the accused product or process before the filing date of the patent.

6. Fair use: The concept of fair use allows for limited use of a patented invention for purposes
such as criticism, commentary, news reporting, teaching, scholarship, or research. The defence
is based on the idea that certain uses of a patented invention should be allowed without
infringing the patent, even if they would otherwise be considered infringing, in order to
promote the public good and encourage creative and intellectual activity. To prove fair use, the
accused party typically needs to show that their use of the patented invention was for a
permissible purpose under copyright law and that it was reasonable in scope and impact.

7. First sale doctrine: The first sale doctrine, also known as the exhaustion doctrine, provides that
the sale of a patented item by the patent holder or with their authorization exhausts their
patent rights and allows the buyer to use or resell the item without infringing the patent. The
doctrine is based on the idea that the patent holder’s exclusive rights to the patented invention
are limited and that the rights of others to use, sell, or distribute a patented product should not
be unduly restricted. The first sale doctrine is often invoked in cases involving the resale of
patented products, such as used books, CDs, or other products that were legally obtained
through a sale or transfer. By applying the first sale doctrine, these products can be resold or
otherwise distributed without infringing the patent, provided that the product was not altered
or modified in a way that would give rise to a new patent infringement.

8. Invalidity or unenforceability of the patent: If a patent is found to be invalid or unenforceable,

any act that would have otherwise constituted infringement would not be considered infringing.

Defences available against patent infringement

 1. Estoppel: Estoppel is a legal principle that can be used as a defence against a claim of patent
infringement. The principle of estoppel states that a person cannot assert a right that they have
previously renounced or abandoned. In the context of patent infringement, estoppel can be
used as a defence when the patent holder has made statements or taken actions that indicate
that they do not believe the accused party is infringing their patent. For example, if the patent
holder has licensed the accused party to use the patented invention or has allowed the accused
party to use the patented invention for a significant period of time without asserting their
patent rights, the patent holder may be stopped from later claiming that the accused party is
infringing their patent.

2. Licence: A licence is a legally binding agreement between the patent owner and another party,
in which the patent owner grants the other party permission to use the patented invention in
exchange for some form of compensation. In the context of a patent infringement claim, a
licence defence argues that the accused product or process is being used under a licence or
other agreement with the patent owner that permits the use. This means that the accused party
has a right to use the patented invention, and therefore cannot be held liable for infringing the
patent.

3. Plaintiff is not entitled to sue: The plaintiff who is claiming patent infringement does not have
the legal right to bring a lawsuit for the infringement. This defence can be raised for a variety of
reasons, such as lack of standing, assignment of the patent, invalidity of the patent, statute of
limitations, or a settlement or licensing agreement. For example, if the patent has been assigned
to someone else, the original owner is no longer entitled to sue for infringement and the new
owner must bring the lawsuit instead. Similarly, if the patent is found to be invalid, the plaintiff
is not entitled to sue for infringement as they do not have a valid patent to enforce.

Remedies for patent infringement

Section 108 of Patent Act,1970 deals with the “Reliefs in suit for infringement”. The remedies for a suit
filed in the infringement of a patent can be classified into three types, they are:

1. Injunction: In the context of patent infringement, an injunction is a court order that requires the
infringing party to stop making, using, selling, or importing the infringing product. It is a
preventative measure that aims to preserve the value of the patent and prevent further harm to
the patent holder. To obtain an injunction, the patent holder must prove that their patent is
valid and that it has been infringed upon by the defendant. Injunction is of three kinds:

 Temporary Injunction: It is a kind of temporary remedy that is provided before the final verdict
of the case. It is used to preserve the status quo of the patent holder. Moreover, they are likely
to succeed in their lawsuit and will suffer irreparable harm if the infringing activity is allowed to
continue. The court should consider three factors before granting temporary injunction to the
patent holder-

I. Prime facie case.

II. Balance of inconvenience.

III. Irreparable loss

  Permanent injunction: It is a kind of permanent remedy that is granted when the case is finally
decided by the court. It requires the infringing party to stop the infringing activity permanently.
The court may also award monetary damages, such as compensation for any profits that the
infringing party has made as a result of the infringing activity. To obtain a permanent injunction,
the patent holder must file a lawsuit and prove that their patent is valid and that it has been
infringed upon by the defendant. However, obtaining a permanent injunction can be a complex
and time-consuming process, and the patent holder must have strong evidence to support their
claim.

 Ex-parte injunction: An ex-parte injunction is a provisional remedy that is used in urgent

situations and is granted without a hearing. It is a powerful remedy for patent infringement, but
it must be used with caution, as it may result in harm to the defendant if it is later found to be
unjustified. It is typically used in urgent situations where the plaintiff needs immediate relief and
there is not enough time for a full hearing.

2. Damages: Damages is a remedy for patent infringement that compensates the patent holder for
any harm that they have suffered as a result of the infringing activity. Damages may be awarded
in the form of monetary compensation, such as compensation for any lost profits or other
financial losses that the patent holder has suffered. The main objective of damages is to
compensate for the loss or injury that happened to the plaintiff.

3. Seizure, forfeiture or destruction: Courts may decree that the items determined to be infringing
should be taken into custody, forfeited, or disposed of as deemed appropriate.

Landmark judgments

1. Novartis AG vs. Union of India (2013)

The highly significant legal dispute in India concerning the principle of patent infringement. Swiss
pharmaceutical company Novartis AG brought the case to the Supreme Court of India after its
application for a patent for its anti-cancer drug “Glivec” was denied by the Indian Patent Office. The
central issue of the case was the concept of “evergreening”, where companies try to prolong the life of
their patents by making minor modifications to their products. Novartis claimed that its product was a
new invention and thus deserving of patent protection. However, the Patent Office rejected the patent,
stating that it was just a modification of an existing drug and not a new invention.

The Supreme Court eventually ruled against Novartis, determining that its product was not a novel
invention and therefore did not qualify for a patent. This ruling was seen as a positive outcome for
public health and access to medicine as it prevented the evergreening of patents and ensured that
generic versions of the drug would be available at more affordable prices.

2. Pfizer Inc vs. Dr. Reddy’s Laboratories Ltd. (2004)

Pfizer, a pharmaceutical company, sued Dr. Reddy’s Laboratories, a fellow pharmaceutical company in
India, for violating their patent on the anti-inflammatory drug “Celebrex”. The central issue in the case
was the interpretation of the Indian Patent Act’s provisions on compulsory licensing of patented drugs.
Dr. Reddy’s Laboratories sought a compulsory licence to manufacture a generic version of the drug,
claiming that it was necessary to ensure access to affordable medicines for the Indian population.
The Delhi High Court ultimately ruled in favour of Dr. Reddy’s Laboratories and granted the compulsory
licence, allowing the company to produce a generic version of the drug. This ruling was considered a
significant victory for public health and access to medicine in India, as it established key legal principles
related to compulsory licensing of patented drugs.

3. Ericsson vs. Intex Technologies (2014)

The case is related to patent infringement in the mobile technology industry. The case was brought
before the Delhi High Court by Swedish telecommunications company Ericsson, against Indian consumer
electronics company Intex Technologies, for infringement of Ericsson’s standard-essential patents (SEPs)
related to mobile technology.

SEPs are patents that are considered essential for the implementation of a technical standard and are
required for the manufacture of certain products. The issue at the heart of the case was the principle of
fair, reasonable and non-discriminatory (FRAND) licensing for SEPs. Ericsson claimed that Intex had used
its SEPs without obtaining a licence from Ericsson and that the licence fees demanded by Ericsson were
fair and reasonable.

The Delhi High Court ruled in favour of Ericsson and ordered Intex to stop using Ericsson’s SEPs and to
pay a reasonable royalty to Ericsson. The court also ruled that SEP holders have an obligation to licence
their patents on FRAND terms and that licensees have the right to seek a judicial determination of the
terms of a FRAND licence.

4. BAJAJ Auto Limited vs. TVS Motor Company Limited JT (2009)

The Supreme Court of India held that TVS had infringed BAJAJ’s patent, as the design of the three-
wheeler produced by TVS was found to be substantially similar to that of BAJAJ. The court held that the
patent granted to BAJAJ was for a new and useful invention and that the design of the three-wheeler
produced by TVS was a reproduction of the patented design.

In its decision, the court emphasised the importance of treating patients as a form of property, with
infringement being a violation of the patent holder’s rights. The decision in this case highlighted the
need for companies to respect the patents of others in order to maintain a fair and competitive business
environment. Overall, the case reinforced the importance of protecting patents and intellectual
property rights in India.

Conclusion

In conclusion, patent infringement refers to the unauthorised use or manufacture of a patented

invention without the consent of the patent owner. The Indian Patent Act, 1970 provides several
remedies to address patent infringement, including injunctions, damages, and seizure, forfeiture or
destruction. However, the enforcement of these remedies remains a challenge due to the complexity of
the Indian legal system and the length of time it takes to resolve a patent dispute. To protect their
patented inventions, businesses in India must be proactive in monitoring for infringement and pursuing
appropriate legal action when necessary. Additionally, it is important for businesses to have a thorough
understanding of the Indian patent law and the remedies available to them in case of infringement. This
will help ensure that their intellectual property rights are adequately protected and that they receive
fair compensation for any unauthorised use of their patented inventions. It is crucial for businesses to
conduct proper due diligence and research before filing for a patent to ensure that their invention is
novel and non-obvious. This will help to minimise the risk of infringement and ensure that the patent is
enforceable.