• Legis Scriptor

Rights of Patentee and Patent Infringement

Authored by Harsh Mangal

Key Words: Invention, Patents, Research, Law, Infringement, Rights


Infringement of patents is against the interests of the patentee or the inventor, but moreover it discourages him/her or other people in doing further inventions or stops them from indulging in research activities in future. Thus, patent laws came into existence, in order to protect the interests of the patentee.

Now, the time is changing and it becomes necessary to revisit the patent laws, and to analyze that what changes are required according to the changing time, in order to provide more protection to the inventors. This article delves into the subject of patent infringement, and what changes are required in the existing laws.


A legal document that grants the inventor exclusive rights and restrict other people or companies from the production and sale of this invention, is called patent. Violation of the rights of patentee or patent holder is referred to as patent infringement. Patent rights are granted to the inventor over his/her invention for a limited period of time by the government. We can say that if any other person, exercises the rights exclusively granted to the patentee, if not authorized to do so by the patentee itself, then is liable for infringement of patent. Provisions relating to the patent infringement are given under section 104-114 of the Patents Act, 1970 [1].

No specific activities are given under the patents law that amounts to infringement, but using, making, importing or selling products which are patented would amount to infringement. Not only product but using the process which is patented, or selling the product which is obtained using that process, also constitutes infringement.

Types of Infringement

There are two types of patent in infringement- direct patent infringement and indirect patent infringement.

Direct Patent Infringement: This occurs when a product of close resemblance to the patented product is commercially used without the authorization of patentee.

Indirect Patent Infringement[2]: This is further divided into two parts – infringement by inducement and contributory infringement.

When a third party induces another party to indirectly infringe the rights of patentee, and inducer is aware of infringement, this case is known as infringement by inducement[3].

Contributory infringement [4] refers to the selling of parts of an invention which is patented. It takes place when the product is intended to be infringed by the seller.

Remedy for Patent Infringement

The patentee is empowered by the Patents Act, 1970 to file a suit if his/her patent rights are infringed. The limitation period to file a suit is three years within the infringement of exclusive patent rights; this limitation period is specified under Limitation Act[5]. The burden of prove generally lies on the plaintiff in these cases, though in some cases it depends upon the discretion of the court. In India, both high courts and district courts can hear the cases related to infringement of patent. Though, the case filed by the defendant counterclaiming for the revocation of the patent, can be heard only by the high court.

The case can be filed by the patentee in the place where he resides, or the area where the infringement took place. This is according to Section 9 of the Civil Procedural Code of 1908[6].

Relief to the Patentee

Relief to the plaintiff in case of the violation of his/her patent rights is given under Section 108(1) of the Patents Act 1970[7].

The remedies available are-

- Temporary or Permanent Injunction.

- Declaration of the action of infringer as unlawful.

- Damages could be claimed.

- Profit earned by the infringer can be transferred to the inventor.

- The expenses incurred during the process of court can also be recovered from the infringer by the patentee.


Various defenses are provided under the section 107 of the Patents Act 1970. These defenses are-

1. The defendant used the invention on the permission of the license.

2. The allegation of patent infringement is false.

3. The act of infringement was unintentional.

4. The plaintiff is not entitled to file a case for infringement of the patent rights.

5. There is a question of public welfare, in case of medicines.

6. The infringement occurred when the patent was not effective.


The growth of research and development sector is of great concern for India. We have seen that India lacks behind in case of new inventions despite of having potential and manpower. This problem could be resolved to some extent if due credit is given to the inventors. Giving patent rights would encourage the inventors to further research and invent, and this would also encourage general public to try new experiments. For this infringement of patent rights need to be curtailed, which could be done only when correct laws according to changing time will come into existence. Old law needs to be updated to accommodate the changing scenario. Creativity needs to be encouraged for the overall development of the country, and updating patent laws and their implementation is a much needed step.

[1] [2] [3] [4] [5] [6]