Infringement of patents, remedies, and offences and penalties

1. What is infringement

The Act does not define infringement. It follows from section 48: a patent is infringed when a person, without the patentee’s consent and during the term of the patent, does in India any of the acts the patentee has the exclusive right to prevent — making, using, offering for sale, selling or importing the patented product, or using the patented process or dealing in the product obtained directly by it.

Whether the defendant’s product or process falls within the patent is decided by reading the claims of the complete specification, because the claims define the monopoly.

• Literal infringement. The defendant’s product contains every element of a claim.
• Pith and marrow. A defendant does not escape by changing or omitting an inessential feature. If he takes the essential features (the “pith and marrow”) of the claimed invention, he infringes, though his product is not a literal copy.
• Doctrine of equivalents. Replacing an element with one that performs substantially the same function in substantially the same way to give substantially the same result is infringement. Indian courts apply this through purposive construction of the claims.

2. Jurisdiction and the suit

• Section 104. No suit for infringement, for a declaration of non-infringement (section 105) or for relief against groundless threats (section 106) may be instituted in a court inferior to a District Court. Where the defendant makes a counter-claim for revocation, the suit and counter-claim are transferred to the High Court.
• Commercial courts. Disputes about intellectual property are “commercial disputes” under the Commercial Courts Act, 2015, so suits of the specified value are tried by the Commercial Court or the Commercial Division of a High Court.
• Burden of proof (section 104A). In a suit on a process patent, where the defendant’s product is identical to the product of the patented process, the court may direct the defendant to prove that his process is different, if the product is new or there is substantial likelihood that it was made by the patented process and the patentee could not find out the process actually used.
• Who may sue. The patentee; an exclusive licensee (section 109); a compulsory licensee who has called on the patentee to sue and been refused (section 110).

3. Defences

Section 107(1) allows every ground on which a patent may be revoked under section 64 to be raised as a defence. So the defendant will commonly argue that the patent is invalid — not new, obvious, not an invention under section 3, insufficiently described — besides denying that his product falls within the claims. Other defences:

• the making, use, import or distribution is in accordance with the conditions in section 47 (government use, experiment, research, teaching), a defence given expressly by section 107(2);
• the Bolar exception or parallel import under section 107A;
• use by or under the authority of the Central Government for the purposes of Government under section 100;
• use on foreign vessels or vehicles under section 49;
• licence or consent of the patentee, or exhaustion of rights by an authorised sale.

4. Reliefs: sections 108 to 114

• Injunction, interim and permanent, on such terms as the court thinks fit (section 108(1)). For interim injunctions the court applies the usual tests of prima facie case, balance of convenience and irreparable injury; a recently granted patent that is seriously challenged may not get interim protection.
• At the plaintiff’s option, damages or an account of profits, not both (section 108(1)).
• Seizure, forfeiture or destruction of infringing goods and of materials and implements predominantly used to make them, without compensation (section 108(2)).
• Innocent infringer (section 111). Damages or an account of profits are not awarded against a defendant who proves that at the date of infringement he was not aware, and had no reasonable grounds for believing, that the patent existed. Marking an article “patent” without the number does not by itself fix him with knowledge. An injunction may still be granted.
• Certificate of validity (section 113) and partially valid specification (section 114): relief may be given for the valid claims.

In Bajaj Auto Ltd. v. TVS Motor Company Ltd., 2009 INSC 1140, (2009) 9 SCC 797, Bajaj claimed that TVS’s new motorcycle engine infringed its patent for twin-spark plug technology. The Supreme Court did not decide infringement. It was concerned with delay: it directed that the suit be tried expeditiously, and laid down that suits relating to intellectual property should be heard day to day and decided quickly, since interim orders in such cases often decide the commercial outcome. Pending trial, TVS was allowed to sell its product on keeping accounts.

In Monsanto Technology LLC v. Nuziveedu Seeds Ltd., 2019 INSC 35, (2019) 3 SCC 381, a Division Bench of the Delhi High Court, hearing an appeal from an interim order, had held Monsanto’s Bt cotton patent claims invalid under section 3(j). The Supreme Court set that aside and restored the single judge’s order, holding that validity of a patent is a matter for trial on evidence and should not be decided summarily at the interim stage.

5. Offences and penalties: Chapter XX

The Jan Vishwas (Amendment of Provisions) Act, 2023 (in force for this Act from 1 August 2024) and the Jan Vishwas (Amendment of Provisions) Act, 2026 (from 1 June 2026) changed the heading of Chapter XX from “Penalties” to “Punishments” and replaced most fines and imprisonment with monetary penalties imposed by an officer.

• Section 118. Contravening a secrecy direction under section 35, or applying abroad in breach of section 39: imprisonment up to two years, or fine, or both. A 2026 proviso excludes the section 39 case where the Central Government is of the opinion that the invention was not relevant to defence or atomic energy.
• Section 120. Falsely representing that an article is patented or that a patent has been applied for (“patent pending”): penalty up to ten lakh rupees, and one thousand rupees a day for a continuing claim.
• Section 122. Refusing or failing to furnish information under section 100(5) or section 146: penalty up to one lakh rupees, and one thousand rupees a day. Furnishing false information: penalty of one-half per cent of turnover or gross receipts, or five crore rupees, whichever is less.
• Section 123. Practising as a patent agent without registration: penalty up to five lakh rupees, and one thousand rupees a day.
• Section 124. Offences by companies: the company and persons in charge are liable, unless they prove lack of knowledge or due diligence.
• Sections 124A and 124B. The Controller may authorise an officer as adjudicating officer to impose penalties after hearing; an appeal lies within sixty days to an officer at least one rank higher. Failure to comply with the order within ninety days is punishable with fine of one lakh rupees or imprisonment up to one year, or both.

Sections 119 (falsification of entries in the register; omitted in 2026) and 121 (wrongful use of the words “patent office”; omitted in 2023) no longer exist.

How this is examined

August 2024 asked “Discuss the concept of infringement of patent. What are the remedies available for such infringement?” Structure: section 48 as the source of the right; claims and their construction (literal, pith and marrow, equivalents); who may sue and where (sections 104, 109, 110); defences (sections 107, 107A, 47); reliefs (sections 108 and 111); and a paragraph on Bajaj v. TVS. A paragraph on Chapter XX, in its current form, answers the syllabus item “offences and penalties” and is useful if the question is set as a short note.