Infringement refers to the use of intellectual property without permission or without consent. Patent infringement is not defined under the Patents Act. However, it is understood that any right granted under the Patents Act, if there is a violation regarding that right, can be construed as an infringement. Under Section 48 of the Patents Act, the rights of the patentee broadly falls within two categories.
It could be either,
Five Rights granted under the patent
These right conferred by the Act allows the patentee to protect their inventions from being imitated by the third party as well as prevents any third party commercially using, exploiting, selling or importing the invention of the patentee during the term of the protection i.e. twenty years from the date of filing of the patent application.
When any unauthorized person/ entity commercially adopts the claims of your Patent, it is said to be Patent Infringement. It is only the patentee who is empowered to Use, make, import, offer for sale, sell the invented process commercially. If someone does the same without the Patent Owner’s consent, then that shall constitute infringement. Infringement occurs when a person intentionally or unintentionally uses/adopts the claims of the Patent commercially without the Authorization of the Patent Owner.
Direct patent infringement -Direct infringement occurs when a substantially close product to a patented product is commercially used without permission/royalty/license from the owner of the patent.
Indirect patent infringement- Indirect Infringement happens when the infringer unknowingly or accidentally commits the infringement.
Note: Any act that does not fall under the category of exemption acts will amount to infringement of patents and is punishable under the Act.
According to the Section 104 Any person filing suit under section 105 or 106 of the Indian Patents Act, has to file the suit or case in any District Court having the concerned Jurisdiction that is competent to deal with Patent infringement Suits.
Section 20 of the CPC, 1908 acts as the guiding principle for filing the case for infringement of patents. According to CPC, the patentee can bring the infringement suit in the court with jurisdiction in the area where he/she resides or carries on a business or personally works for the gain. The Patentee can also bring the suit for infringement in a court with jurisdiction in the area where the infringing activity took place (Cause of Action).
Section 2(1)(e) of the CPC, 1908 defines the term District Coutr which means and includes-
The Three Charted High Court also have the ordinary original civil jurisdiction for the purpose of governing the territorial jurisdiction to file patent infringement suits.
Note: Going by the definition, it can be inferred that High Court with ordinary civil jurisdiction will also have the jurisdiction to try and entertain the suit for patent infringement.
The three Charted High Courts and the Delhi High Court have the competent pecuniary jurisdiction to try the matter. It is calculated based upon the valuation of the suit. Patent Holders invest lot of amount, time, and energy in discovery and research of the invention. The reward for all the efforts put is by getting exclusive commercial rights over the same. Therefore, it is very important to have a proper valuation of suit for the purpose of protecting these exclusive rights for these inventions.
Any aggrieved person who holds a Registered Patent in respect of a product or a process, and if in his opinion he believes the subject matter/claims of the Patent to be infringed, then he may institute a Suit for Infringement.
A suit for infringement can be instituted in a District Court having jurisdiction. However, if the infringer makes a counter-claim for revoking the patent, the Suit shall be transferred to High Court.
Once the Suit is filed, it is on the alleged infringer (Defendant) to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process.
Indian Limitations act governs the period of limitation for bringing a suit for infringement of a patent, which is for 3 years from the date of infringement.