This article has been written by Ms.B.S.S.Sridevi , a 4^th  year student of  Damodaram Sanjivayya National Law University.

The Patents Act, 1970 deals with the concept of patents. There are no general sections which says that there is an infringement of patented product. Besides it lays down the activities which would constitute the infringement if are done without they permission of the patent holder. Those actions are : 

1. “Making, using, offering for sale, selling, importing the patented product,
2. Using the patented process, or using, offering for sale, selling, or importing the product directly contained by that process.”

 This act made suitable product innovations and those inventions which are related to food and pharmaceutical  as unpatentable material in India.There were regulations imposed in connection with the import of finished formula and their various regulations which were prescribed in setting the price.

 In 1992 India has become member of WTO and it had to amend the national laws in order to meet the requirements which were mentioned in TRIPS agreement. There were two major concepts which can be termed as Exclusive Marketing Rights and mailbox system. As per the  EMR system, the exclusive right to market a pharmaceutical and  agriculture product belonging to a foreign company in the Indian market was for 5 years. Under email box system all the applications for grant of patents for farmer suitable and agriculture products would be received and they would be selected after examination. There were several amendments which were made in the subsequent years in order to ensure that there is no infringement. 

The existing principles and law was not sufficient in order to ensure the same and there were some additional laws which were governing patents. There were Global Patents Act and Patents Amendment Act in addition to the same.

There were some significant features of the future amendments and they are product licensing. Previously there used to be only process patent protection but now it has been extended to the product also. It means that if a person uses different method in order to produce the same product then this would not be constituted as a violation of patent. 

Another concept called compulsory licensing was introduced at a later point of time which means that if there is any product which is of great use or good for the public then the government can enforce the use of such product for non-commercial use. It is recently observed in the Covid vaccines. They have played an important role in curbing the corona virus and was essential need of the people at that particular point of time.

There were also other provisions in which the licensee can be sued if he misuses the products.

Remedies for Infringement of Patents

1. A suit for patent infringement – It is the right for the patentee to file a suit if there is any infringement of the Exclusive rights which have been granted to him. There is a limitation period which has been specified in cases of patent infringement which is 3 years full stop the burden of proof usually in such cases depends on the plaintiff to prove that there has been infringement of the patent which has been taken place and sometimes the burden of proof will be decided by the court. It varies from the circumstances. In India high courts and district courts are usually entrusted with the power to deal with cases pertaining to infringement of patents. If there are any cases which relate to revocation of the patent filed by the defendant then only high Court has the jurisdiction to hear such case. The court which will have the jurisdiction is usually the place where the plaintiff resides or the place where he carries out his business or wear it cause of action arises. The rights of patentee are  discussed in the section 48 of Indian Patents Act. There are categorically some things which have been specified which come under the infringement as per this section which are : 

“Using, Making, Importing, Offering for sale and Selling the patented process”

If any of these activities are attempted then the perpetrator will be liable and the patentee has some remedies which are incorporated in Section 108(1) of Patents Act.

Reliefs are Temporary injunction, Permanent Injunction and Damages can be sought.

Temporary injunction – The order for temporary injunction is usually given by Court when they suit is filed initially to prevent the defendant from getting any under advantage from the patented product. There is a need to prove that the patent which has been obtained by the plaintiff is a valid one and he is the owner of such a product.

Permanent Injunction – Permanent injunction is usually given by the court when the proceedings are concluded finally in the court of law. The interim injunction is transformed into a permanent injunction when the guilt is proved. But if the guilt is not proved then the interim injunction is dissolved and therefore it is not made to a permanent injunction.

Damages –  If the guilt is proved then either the damages are awarded or the undue gains which were gained by the defendant by the use of such a product will be awarded to the plaintiff. Damages can not be awarded if the defendant pleads that he is ignorant of such a use or there is no reasonable ground to prove that there has been any infringement.

CASE LAWS : 

1. Bajaj Auto Limited V. TVS Motor Company Limited JT –  In the year 2007 against was filed by Bajaj Auto limited against TVS motors.this was a case where there were issues relating to copyright infringement and patent infringement. The court opened that the cases relating to this topics were not being settle at a fast rate and the parties are also always looking for a temporary injunction rather than for a permanent in junction so the court gave a guideline that the cases related to copyright and patent infringement must be dealt on day today basis and the final verdict must be given within 120 days of institution of such a suit.
2. Novartis v. Union of India–  There was an application which was filed by the Company called Novartis in which they claimed for grant of patent for a product called Gleevec. This case is important because the court gave difference between invention and discovery. For pharmaceutical products there was a different test which has been adopted in order to grant patents which is called enhanced therapeutic efficacy. Also as per article 3 of the Patents Act the court made a guideline that the essential products which are useful for public good at the times of emergency must be made available to public at reasonable prices.
3. Hoffmann-La Roche Ltd vs Cipla Ltd., Mumbai Central –  This is actually deemed to be the first case in Independent India which is related to infringement of patent law officially. The plaintiff approached the court asking for passing of an interim injunction in order to prevent the defendant from use of a generic medicine. The court has declared that the sale of such product was for great public good and this can not amount to infringement. There was another case which was also going on with respect to the same issue.

CONCLUSION : 

Patent loss are very important in order to protect the ideas of one person. a person’s own idea was not be used by any other person without his permission and for his own benefit . In order to ensure that is a fate use of one’s own idea the concept of patent has been introduced. These are the days of technology and information. Information has became a crucial asset and it has to be protected.

Aishwarya Says:

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