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The Patents Act, 1970 amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003 amended by the Patents (Amendment) Rules, 2006 provides remedies for protection of patents in case of their infringements. This is the basic Act which governs Patent litigation in India. Apart from this the provisions of the Code of Civil Procedure, 1908 also governs patent infringement proceedings as the suit for patent infringement proceedings is in actuality a civil suit.
The courts while deciding suits for infringement take into consideration precedents set by the Supreme Court and the various High Courts of India the latter binding their respective courts and district courts in the same jurisdiction. All courts, tribunals other judicial bodies in India are bound by the decision of the highest court of the land i.e. the Supreme Court unless otherwise the same is challenged and overruled by a larger bench of the same court in consequence thereof.
Once the patentee determines patent is being infringed he/it exercises the option of a suit for Patent infringement in a District Court or a High Court of the Jurisdiction where the infringer is situated or the cause of action i.e. patent infringement has arisen. High courts of New Delhi, Calcutta, Bombay and Madras possess original jurisdiction to entertain patent infringement matters and hence patent infringement suits can be directly instituted in these courts without approaching the district courts first.
However these courts have specific pecuniary limits and if the damages claimed in the suits match the defined limits patent infringement suits can be filed in these courts; otherwise the District Courts. The institution of a patent infringement suit is not necessarily by way of a legal notice to the infringer popularly known as Cease & Desist Letter in India. Infact, Cease & Desist Letters are sent forth in rare cases. Generally, rectification of infringement is sought for by the right holder directly by way of an infringement suit.
The reliefs that are available to a patentee in suit for patent infringement against an infringer are:-
•  Temporary / Interlocutory injunction;
•  Ex-parte injunction;
•  Permanent injuction;
•  Damages or an account of profits;
•  Seizure, forfeiture or destruction of infringing products / goods and / or materials and implements predominantly used in the creation of the infringing
   products / goods.
Preliminary injunction is a form of preliminary relief prohibiting the infringer from manufacturing goods with the aid of the Right holder’s patent and their subsequent marketing and sale till the suit for permanent injunction is finally disposed off.
The principles for the grant of temporary injunction are the following:
•  The plaintiff’s patents are prima-facie valid patents;
•  The infringement on the part of the defendant is prima facie;
•  The balance of inconvenience is in favour of the injunction being granted.
•  The plaintiff will suffer an irreparable loss if injunction is denied.
On the whole the standard of proof required for establishing infringement is preponderance of probabilities i.e. the plaintiff must show that infringement is more probable than not.
It is also a rule of practice that if a patent is a new one, a mere challenge at the bar would be quite sufficient for refusal of temporary injunction but if the patent is sufficiently old and has been worked out the court would, therefore for the purpose of temporary injunction presume it to be a valid one. The Court may grant injunction if it is satisfied that the patent is valid. [National Research Development Corporation of India V. Delhi Cloth & General Mills Co. Ltd. AIR 1980 Del 132; V. Marika Thevar V. Star Plough Works AIR 1965 Mod 327
However, valid registration of a patent is not sufficient at times. The Court will also take into consideration whether patentee has put his patent in use.
In Franz Xaver Huemer V. Ner Yash Enginers [AIR 1997 Del 79] the plaintiff had already obtained patent in the year 1984 pertaining to certain mechanical devices used in the textile industry but hadn’t put his patent in use continuously for a long period of time. The High Court ruled in favour of the defendant and held that in equity, the plaintiff could not seek temporary injunction against the defendant.
This case in particular also reflects that while granting any relief to the plaintiff in patent infringement suits the court amongst other things will look at the whole case, the strength of the patentee’s case and the defendant’s defence.
Similar were the observations of the court in Gujarat Bottle Manufacturing Co. Ltd. V Coca Cola Co. (1995).
The Plaintiff may be refused injunction in case the court finds that he has complied with the action of the infringer. The Plaintiff may also be denied injunction by the court in case of unaccounted for unnecessary delay in filing the suit.
The Patentee can also seek the relief of an ex parte injunction if he feels that the infringer would become cautious and thus would not be caught unawares and the very purpose of granting the injunction would be defeated by the delay of notice being served on defendants to appear in the court.
The plaintiff and the defendant have the options of tendering an application before the court asking the court to:
•  Order for the inspection, detention and preservation of any property which is the subject matter of the suit or property in relation to which question
   has arisen;
•  Order any person to enter into any land or building in the defendant’s/plaintiff’s possession;
•  Order that any sample be obtained, observation be made or experiment be tried for obtaining authentic and complete information or evidence.
 

( Visit profile of Attorneys/Agent dealing with Litigation )

   •  Sharad Vadehra
   •  Vikas Chandra
   •  Somitra Kumar

 
 
 
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