ACKNOWLEDGEMENT:

I would like to express my sincere gratitude to the Principal, PROFESSOR ANAND SHANKER
SINGH sir for providing me with the opportunity to pursue this research. I would also like to thank
Convener, DR. MANOJ KUMAR DUBEY sir for his invaluable guidance and support throughout
the project. I am also indebted to Assistant Professor, MS. JAGRITI VIJAY Ma’am for his expertise
and insights, which were instrumental in shaping my research. My thanks and appreciations also go to
my colleagues in developing the project and people who have willingly helped me out with their
abilities.

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 TABLE OF CONTENTS:

1. Introduction…………………………………………………….03

2. Types of Patent Infringement…………………………………03-05

2.1. Direct Infringement……………………………………

2.1.1. Literal infringement………………………………..

2.1.2. Non-Literal infringement……………………………

2.2. Indirect Infringement…………………………………

2.2.1. Contributory Infringement………………………….

2.2.2. Induced Infringement……………………………….

2.3. Willfull Infringement………………………………….

3. Burden of proof……………………………………………….. 05

4. Doctrine related to Patent Infringement……………………. 05 - 06

4.1. Doctrine of equivalents……………………………….

4.2. Doctrine of colourable variation……………………..

5. Remedies for Patent Infringement………………………….. 06 – 07

5.1. Injunction……………………………………………

5.1.1. Temporary Injunction…………………………….

5.1.2. Permanent injunction………………………………

5.1.3. Ex parte interim injunction…………………………

5.2. Damages………………………………………………….

5.3. Seizure or forfeiture of infringing goods……………….

6. Landmark Cases………………………………………………… 07 – 08

7. Conclusion and Suggestion……………………………………… 09

8. Bibliography…………………………………………………….. 10

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VIOLATION OF PATENT RIGHTS AND REMEDIES:

1. INTRODUCTION:
A patent is a form of intellectual property that gives its owner exclusive rights about the use,
manufacture, and sale of an invention for a certain period. In most jurisdictions, patents are granted
for 20 years from the date of filing of the patent application. Patent law offers remedies to all whose
patents have been infringed upon.

Section 2(m) of the Indian Patent Act, 1970 provides the definition of the term patent in Intellectual
Property Rights as “a patent which is granted for any invention under the provisions of this Act.” The
main purpose of a patent is to protect the invention from competitors in the market by prohibiting them
from selling, manufacturing, using, or distributing the patented technology or inventions.

Patent infringement occurs when a person or entity makes, uses, sells, offers to sell, or imports a
product or process that is covered by a valid patent without the consent of the patent holder. The
fundamental idea is that patent holders have exclusive rights over their patented inventions, and any
unauthorized use of those inventions constitutes infringement.

A patent claim describes all the specific features of the invention that are protected. If such features
exist in the accused product or process, then it might be construed as an infringement. This analysis
can often be done through a "claim construction" or "claim interpretation" process whereby courts
interpret the claims to determine whether the alleged infringer's product or process falls within the
claim scope of the patent.

There are two basic elements in a patent infringement claim –

 Validity of the Patent: For a valid infringement claim, the patent itself must be valid first. A
court may analyze whether the patent was legally granted considering the prior art, novelty,
and non-obviousness.
 Infringement: This is whether the infringer's activities or product falls within the scope of the
patent claims.

2. TYPES OF PATENTS INFRINGMENT1:

Patent infringement can happen in more than one form, depending upon the nature of the infringement
and what an infringing party is doing. There are broadly two forms of patent infringement in general:
direct infringement and indirect infringement.

2.1. Direct infringement: Direct infringement happens when a party directly makes, uses, sells, or
imports a patented invention without permission of the patent holder. This type of infringement
is the most straightforward and happens when the infringer's actions directly violate one or more

1
h ps://[Link]/india/patent/949758/patent-infringements-and-their-types

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 claims of the patent. It is fairly simple to discern, as it represents a blatant violation of the
exclusive rights of the patent. 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.

2.1.1. 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, replica of the original product is used, manufactured, sold or
imported.
In the case of Polaroid Corp. vs. Eastman Kodak Co (1986) 2, 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.

2.1.2. 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) 3, 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.

[Link] Infringement: Indirect infringement arises when a party does not directly infringe a
patent but can help or induce some other party to infringe it. Two primary types are:

2
641 F. Supp. 828 (1986)
3
38 PTC 435 (2008)

4
 2.2.1. Contributory Infringement: This is when a party sells or supplies an element of a patented
invention with the knowledge that it will be used to infringe a patent. Even though the party did
not infringe the patent directly, by supplying the infringing element, they contributed to the
infringement.
2.2.2. Induced Infringement: Induced infringement is when a party encourages another person
to infringe on the patent. It can be in the form of advertising, giving instructions, or in
any other form of persuasiveness or direction leading to infringement of the patent. To
prove the act of inducing infringement, one has to show that the defendant had
knowledge of the patent and that they knew that, to induce, others would infringe.

2.3. Willful infringement: Willful infringement occurs when the infringer knows about the patent
and intentionally ignores the rights of the patent holder. It is an act of infringement committed
with or without consideration for the existing patent. In such cases, courts may award enhanced
damages if the case of willful infringement is proved. It usually consists of circumstances where
the alleged infringing party was aware of the patent but still infringed it, at times directly
disregarding the rights of the patent owner.

3. BURDEN OF PROOF: The burden of proof in patent infringement originally lies upon the
patentee (the plaintiff). However, TRIPS4 amended the Patents Act, 1970 by insertion of Section
104A5 thereby introducing the concept of "reversed burden of proof". This signifies that if the
subject matter of patent is a process and results to;
 A new product, and
 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.

4. DOCTRINES RELATED TO PATENT INFRINGEMENT:

4.1. 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.

4.2. 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

4
Trade-Related Aspects of Intellectual Property Rights Agreement
5
Section 104A of The Indian Patents Act, 1970 discuss about the Burden of proof in case of suits concerning
infringement.

5
 apparent differences. This means that an infringer cannot neglect liability by making minute
changes to the patented invention.

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.

5. REMEDIES FOR PATENT INFRINGEMENT:

Section 108(1) of the Patents Act 6provides for the remedies to the plaintiff in case his patent rights
have been infringed. In any suit for infringement, the court may grant reliefs such as injunction and at
the option of plaintiff, either damages or an account of profits. These remedies are not cumulative but
alternative.

In addition, the court may also order that the goods which are found to be infringing and materials and
implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited
or destroyed, as the court deems fit under the circumstances of the case without payment of any
compensation. The remedies for a suit filed in the infringement of a patent can be classified into three
types, they are:

5.1. 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:

5.1.1. 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-
 Prime facie case
 Balance of inconvenience.
 Irreparable loss

5.1.2. 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

6
The reliefs which a court may grant in any suit for infringement include an injunc on (subject to such terms, if any, as
the court thinks fit) and, at the op on of the plain ff, either damages or an account of profits.

6
 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.

5.1.3. Ex parte interim 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.

5.2. Damages: The owner of a patent is entitled to either damages or an account of profits. He may
either obtain damages in respect of losses caused by infringing activities of the defendant or an
account of profits obtained by the infringer – but he cannot seek both. When drafting particulars
of claim, the claimant will generally request these remedies as the alternative. It will be granted
in addition to the remedy of injunction. Where plaintiff chooses the remedy of account of
profits, he will be entitled to claim only that profit which was enjoyed by the defendant by using
the plaintiff’s invention. It is unreasonable to give the profits of patentee which were not earned
by the use of his invention.7

5.3. Seizure or forfeiture of infringing goods: Apart from other reliefs which a court may grant, the
court may also order that the goods which are found to be infringing and materials which are
predominantly used in the creation of infringing goods shall be seized, forfeited or destroyed,
as the court deems fit under the circumstances of the case without payment of any
compensation.

6. LANDMARK JUDGEMENT RELATED TO PATENT INFRINGEMENT:

 Novartis v. Union of India (2013)8: In this case, a company Novartis filed an application
before the court to grant the patent to one of its drugs ‘Gleevec’ which they claimed was
invented by them. In this case, the court drew a distinction between invention and the
discovery of an already existing drug. Also, the court also formulated a new test for granting
patents to pharmaceutical products known as enhanced therapeutic efficacy. The court
introduced this test besides the other traditional tests mentioned under Article 3 of the
patents act to ensure that these patented products are made available to the general public
on nominal prices in times of need.

7
United Shoe and Nail Company Ltd. v. Stewart & co., (1888)5 RPC 260 at pp.266-67
8
(2013) 6 SCC 1

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  BAJAJ Auto Limited vs. TVS Motor Company Limited JT (2009)9: 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.
 Laxmi Dutt Roop Chand v. Nankau and others:10
Allahabad High court observed that the infringement of a patent may be done in a number
of ways, one of which is by using that patent or any colorable imitation thereof in the
manufacture f patented articles. It has also been observed in some of these authorities that
the infringement may not be of the complete whole of the process but it may be only in part
but in the latter case what is necessary is that the protection which is sought for, for such
part is material or is totally new.

9
(2009) JT 2009 (12) SC 103
10
AIR 1964 All 27

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7. CONCLUSION AND SUGGESTIONS:

7.1. 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.

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.

7.2. Suggestions:

To reduce patent violations, laws should be made clearer and regularly updated to match new
inventions and technologies. Special courts with trained judges can help solve patent cases faster
and more fairly. It’s also important to spread awareness so that inventors understand their rights and
how to protect them. Using alternative methods like mediation or arbitration can save time and
money compared to regular court cases. Lastly, since many inventions are used worldwide,
countries should work together to create stronger international rules and cooperation. This will help
protect patents both within a country and across borders.

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8. BIBLIOGRAPHY:

 [Link]
india/
 [Link]
 [Link]
patents/#_ftnref8
 [Link]
 [Link]
 [Link]

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