Table of Contents

• I. Introduction
• II. Exclusive Rights and Infringement (Section 48)
• III. Co-Ownership and Infringement (Section 50)
• IV. Territorial Scope of Indian Patents
• V. The Interplay of Validity and Infringement
• VI. Types of Patent Infringement
  • A. Literal Infringement
  • B. Non-Literal Infringement (Doctrine of Equivalence / Pith and Marrow)
    • Dudgeon v Thomson
    • Van der Lely v Bamfords
  • C. Indirect Infringement
• VII. Judicial Determination of Infringement
• VIII. Remedies for Patent Infringement
• IX. Conclusion
• Table 1: Literal Infringement vs. Doctrine of Equivalence/Pith & Marrow in India

I. Introduction

Patent infringement under Indian law represents the unauthorized encroachment upon the exclusive rights granted to a patentee by The Patents Act, 1970 (“the Act”). While the Act itself does not provide a specific, self-contained definition of “infringement” ¹, its essence is universally understood through the violation of the specific statutory rights conferred upon the patentee, primarily under Section 48.¹ This reliance on Section 48 means that the interpretation and judicial construction of these exclusive rights are central to determining what constitutes an infringing act. The governing legal framework comprises the Act (as amended), The Patents Rules, 2003 (as amended), and a body of judicial precedents established by the Supreme Court and various High Courts.⁹ Additionally, procedural aspects, particularly for high-value disputes, are influenced by The Commercial Courts Act, 2015.¹³ This report provides a comprehensive analysis of patent infringement in India, covering the scope of patentee rights, the relationship between validity and infringement, types of infringement, the judicial process for determination, and available remedies.

II. Exclusive Rights and Infringement (Section 48)

Section 48 of the Act is the cornerstone defining the patentee’s exclusive rights, subject to certain conditions and exceptions outlined elsewhere, such as in Section 47 (e.g., government use, research exemptions).¹ These rights differ based on whether the patent protects a product or a process.

• Product Patents (Section 48(a)): For a patented product, the patentee possesses the exclusive right to prevent third parties, acting without consent, from making, using, offering for sale, selling, or importing that product in India.¹ Any unauthorized performance of these acts within India constitutes infringement.
• Process Patents (Section 48(b)): If the patent covers a process, the exclusive rights extend to preventing third parties, without consent, from using that process in India. Furthermore, these rights also prevent the unauthorized act of using, offering for sale, selling, or importing in India the product obtained directly by that patented process.¹ Infringement can thus occur either by unauthorized use of the process itself or by dealing in the immediate product derived from it.

These rights are fundamentally negative rights – the power to exclude others from performing specified actions.⁸ Infringement, therefore, is the commission of a prohibited positive act falling within the scope of this statutory exclusion.¹ The precise scope of terms like “making,” “using,” “selling,” “importing,” and crucially, “product obtained directly by that process,” is determined by courts through interpretation of the patent specification and claims.⁵ The phrase “for those purposes” within Section 48 suggests these rights primarily target commercial activities, distinguishing them from non-infringing acts like experimental use under Section 47(3) or regulatory submissions under Section 107A(a).¹

The protection afforded by Section 48(b) to the direct product of a patented process is significant. However, it presents an evidentiary challenge for the patentee: proving that an identical product sold by a competitor was indeed manufactured using the specific patented process. Recognizing this difficulty, the legislature introduced Section 104A, which, under specific conditions (such as the product being new, or identical and the patentee having made reasonable efforts to determine the process used), can shift the burden of proof to the defendant to demonstrate their process differs from the patented one.¹

III. Co-Ownership and Infringement (Section 50)

When a patent is granted to multiple entities, their rights and obligations are governed by Section 50, unless modified by a specific agreement between the co-owners.¹⁷

• Shares and Exploitation: By default, co-owners hold equal, undivided shares in the patent.¹⁷ Each co-owner is entitled to independently exercise the rights granted under Section 48 (making, using, selling, importing) for their own benefit and does not need to share profits or account to the other co-owners, absent an agreement to the contrary.¹⁷
• Licensing and Assignment: A critical limitation exists: one co-owner cannot grant a license under the patent or assign their share without the consent of all other co-owners, unless an agreement permits otherwise.¹⁷ This structure permits independent exploitation, potentially leading to direct competition among co-owners, while simultaneously restricting broader commercialization through licensing without unanimous consent. This inherent tension underscores the importance of comprehensive co-ownership agreements addressing exploitation strategies, revenue sharing, and licensing protocols.¹⁸
• Infringement Suits: Each co-owner possesses the right to sue third parties for infringement to protect the patent.¹⁷ Indian case law, notably M.C. Jayasingh v Mishra Dhatu Nigam Limited, confirms that one co-owner can initiate an infringement suit.²⁹ While the initiating co-owner may proceed, procedural fairness often requires that other co-owners be made parties to the suit, potentially as defendants if they refuse to join as plaintiffs.²⁹ This ensures the collective asset is protected even if not all owners actively participate, though it adds procedural steps.
• Other Provisions: Section 51 allows the Controller to issue directions regarding the patent’s management upon application by a co-owner in case of disputes, provided it doesn’t contradict any existing agreement.²⁵ Furthermore, a third party purchasing a patented article from one co-owner acquires the right to deal with it as if purchased from a sole patentee, protecting bona fide purchasers.¹⁷

IV. Territorial Scope of Indian Patents

Patent rights under the Act are strictly territorial.

• Geographical Limit: An Indian patent grants rights enforceable only within the territory of India.⁹ It offers no protection against acts committed entirely outside India.
• Importation as Infringement: The act of importing into India a product covered by an Indian product patent, or a product made directly using a process patented in India, without the patentee’s consent, constitutes infringement within India.¹ This is vital for enforcement in a globalized market, allowing patentees to control the entry of infringing goods irrespective of their manufacturing origin.¹
• Exceptions:

• Section 49: Use of a patented invention on foreign vessels, aircraft, or vehicles that are temporarily or accidentally in India is exempt from infringement.¹
• Section 107A(b) (Parallel Imports): Importation is permitted if the imported products were placed on the market in another country by or with the consent of the patentee (i.e., by a person “duly authorised under the law to produce and sell or distribute the product”).¹ The requirement of authorization, tracing back to the patentee, facilitates the principle of international exhaustion but prevents unrestricted grey market imports.¹

V. The Interplay of Validity and Infringement

The validity of a patent is inextricably linked to its infringement.

• Validity Prerequisite: An invalid patent cannot be infringed, as it confers no enforceable rights.⁶
• Challenging Validity:

• Defence (Section 107): In an infringement suit, the defendant can raise any ground for revocation listed in Section 64 as a defence against the infringement claim.¹ This makes validity scrutiny an inherent part of most infringement litigations.
• Counterclaim for Revocation (Section 64): A defendant can proactively seek the patent’s revocation via a counterclaim within the infringement suit.¹
• Transfer to High Court: If a revocation counterclaim is filed in a suit pending before a District Court, the entire case (infringement suit plus counterclaim) must be transferred to the relevant High Court for adjudication.¹ This procedure ensures that the power to revoke a patent, an action affecting the public register with in rem consequences (binding on everyone), rests with the higher judiciary.⁴⁰ In contrast, a finding of invalidity under Section 107 by a District Court might only operate in personam (between the parties).⁴⁰

• Grounds for Revocation (Section 64): The Act provides numerous grounds upon which a patent’s validity can be challenged, including lack of novelty, lack of inventive step (obviousness), non-patentable subject matter, insufficient disclosure, prior claiming, wrongful obtainment, failure to disclose foreign filing information (Section 8), anticipation by traditional knowledge, and others.⁴²
• Effect of Revocation: A revoked patent is considered void ab initio (from the beginning), nullifying any basis for an infringement claim.⁴⁰ The statutory link between Section 64 (revocation grounds) and Section 107 (defences) means patentees must always be prepared to defend the patent’s validity alongside proving infringement.¹⁰

VI. Types of Patent Infringement

Infringement can occur literally or non-literally.

• A. Literal Infringement: This occurs when the accused product or process embodies every single element described in at least one claim of the patent.⁶ It requires a direct, element-by-element correspondence between the claim language (as properly construed) and the accused subject matter. If any claimed element is absent, literal infringement is negated.⁶
• B. Non-Literal Infringement (Doctrine of Equivalence / Pith and Marrow): Indian courts recognize that infringement can occur even without a perfect literal match, preventing infringers from making trivial modifications to avoid liability.² This is assessed through doctrines evolved in jurisprudence:

• Doctrine of Equivalence (DoE): Though not explicitly codified, this doctrine is frequently applied.⁶ The common test is the “Triple Identity Test” (Function-Way-Result): Does the substituted element in the accused product/process perform substantially the same function, in substantially the same way, to achieve substantially the same result as the claimed element?.⁵⁰
• Pith and Marrow Doctrine: Originating from UK law, this doctrine focuses on the “essential integers” or the “substance” of the invention.⁵⁷ Infringement occurs if the core elements (“pith and marrow”) are taken, even with variations in non-essential parts.⁵⁰ Indian courts often use this concept, sometimes interchangeably with DoE, or even prioritizing it.⁴ Recent decisions suggest applying the pith and marrow analysis potentially alongside the triple identity test.⁵⁶
• Relationship: The precise interplay between DoE and Pith & Marrow in India is still evolving. Both aim to capture substantive copying, but their exact tests and hierarchical relationship continue to be shaped by case law, potentially leading to some uncertainty for litigants.⁵⁰
• Key Cases: Landmark cases illustrating these principles include Raj Parkash v. Mangat Ram Chowdhry ⁵⁰, Ravi Kamal Bali v. Kala Tech ⁴, FMC Corporation v. Natco Pharma ¹⁰, and SNPC Machines v. Vishal Choudary.⁵⁰

1. Dudgeon v. Thomson (1877) 3 App. Cas. 34 (HL)

• Context: This case involved a patent for improvements in apparatus for expanding boiler tubes.
• Infringement Focus: The central issue revolved around whether the defendant’s device, which differed in some mechanical details but achieved the same result in a similar way, infringed the patent.
• Important Principles/Lines (Paraphrased Concepts):
  • The House of Lords focused on whether the defendant had taken the “substance” or the “pith and marrow” of the patented invention.
  • Infringement can occur even if the infringing article is not identical to the patented one, provided it adopts the essential features or substance of the invention.
  • The court considered whether the defendant used mechanical equivalents for parts of the patented combination to achieve substantially the same result in substantially the same way.
  • It established that a patent for a combination of parts could be infringed by taking the essential elements of that combination, even with variations in non-essential details or the substitution of equivalent mechanisms.
• Type of Infringement: Infringement by taking the substance (or “pith and marrow”) of the invention, often involving the doctrine of mechanical equivalents.

2. C. Van der Lely NV v. Bamfords Ltd. [1963] RPC 61 (HL)

• Context: This case concerned a patent for a hay-raking machine where the rake wheels could be moved into different positions.
• Infringement Focus: The House of Lords revisited and refined the “pith and marrow” doctrine. The key question was how to determine if the essential integers (elements) of the patented claim had been taken by the defendant’s machine, which had some differences.
• Important points:
  • Lord Reid reaffirmed the “pith and marrow” or “substance” test for infringement: “[it] is settled law that there is infringement if the defendant has taken the pith and marrow of the invention.”
  • The court must distinguish between essential and non-essential features (integers) of the patent claim.
  • Taking all essential features constitutes infringement, even if non-essential features are omitted or substituted with equivalents.
  • Conversely, if the defendant’s device omits an essential feature described in the claim, there is generally no infringement.
  • The determination of what is essential is a matter of construction of the patent specification and claims. It’s not just about whether a feature contributes to the advantages, but whether the patentee has defined it as essential in the claim.
• Type of Infringement: Infringement determined by taking the “pith and marrow” or substance of the invention, with a focus on identifying and appropriating the essential features of the patent claim.

In essence, Dudgeon v Thomson emphasized taking the “substance” often through equivalents, while Van der Lely v Bamfords refined this by focusing the “pith and marrow” analysis specifically on the essential features as defined by the patent’s claims.

Table 1: Literal Infringement vs. Doctrine of Equivalence/Pith & Marrow in India

Feature	Literal Infringement	Doctrine of Equivalence / Pith & Marrow
Definition	Accused product/process exactly matches every element of a patent claim.	Accused product/process is substantially similar to the claimed invention, capturing its core essence despite minor differences.
Core Test	Direct, element-by-element correspondence.	“Triple Identity Test” (Substantially same Function-Way-Result) and/or “Pith and Marrow” (Essential features taken).
Claim Scope Focus	Strict adherence to the exact wording of the claims as construed.	Focus on the substance and essential elements/function of the invention, allowing for minor variations.
Key Consideration	Is every single element of the claim present in the accused product/process?	Are the differences between the accused product/process and the claim insubstantial? Does it perform the same function in the same way?
Relevant Case Principles	Requires strict mapping.52 Absence of even one element negates infringement.6	Prevents escaping liability via trivial changes.50 Considers substance over form.54 Evolving jurisprudence.55

• C. Indirect Infringement: While the Act focuses on direct infringement under Section 48, concepts like contributory infringement (knowingly supplying essential components for infringing use) and induced infringement (actively encouraging infringement) are discussed in legal commentary and may be relevant in practice, likely addressed through general liability principles, although not explicitly codified as separate offenses.² Proving knowledge and intent is crucial for such arguments.⁴⁹

VII. Judicial Determination of Infringement

The process for determining infringement in Indian courts involves several key stages.

• Jurisdiction: Suits commence in District Courts or High Courts with original jurisdiction, depending on territorial and pecuniary limits.¹ Counterclaims for revocation trigger transfer to the High Court.¹
• Claim Construction: This is the crucial first step, where the court legally defines the scope and meaning of the patent claims.¹⁹ It is considered a matter of law for the judge.⁶²

• Claims are interpreted from the perspective of a Person Skilled in the Art (PSA) at the relevant date.¹⁹
• Principles include giving words their ordinary meaning, reading claims in light of the specification and drawings (holistic approach), and sometimes employing purposive construction.²⁰
• Intrinsic evidence (claims, specification, drawings, prosecution history) is paramount, while extrinsic evidence (expert testimony, dictionaries) is used cautiously, mainly for clarification.¹⁹ The interpretation derived from claim construction dictates the boundaries for the subsequent infringement analysis.¹⁹

• Infringement Analysis: The court compares the construed claims against the accused product/process, assessing both literal identity and non-literal equivalence.¹⁰
• Burden of Proof: Generally, the plaintiff (patentee) must prove infringement.¹ However, under Section 104A, for certain process patents, the burden can shift to the defendant under specified conditions.¹ This statutory shift acknowledges the difficulty patentees face in proving the internal processes used by competitors.¹
• Evidence: Requires proof of patent validity and ownership ⁶³, detailed mapping of claims to the infringing product/process (using technical analysis, expert reports, product comparisons) ², and evidence supporting damages or profits claims.⁶⁴ Defendants typically provide evidence of non-infringement or invalidity.¹⁰ Expert evidence is often critical.¹⁰
• Factors Considered: Courts weigh claim language, specification details, prosecution history, the nature of the invention, literal overlap, equivalence (Function-Way-Result), essential features, and public interest, particularly when considering injunctions.⁸

VIII. Remedies for Patent Infringement

Upon finding infringement of a valid patent, courts may grant several remedies under Section 108.⁸

• Injunctions:

• Interlocutory Injunction (Interim/Temporary): A crucial early remedy to halt ongoing infringement during the trial.⁶ Granting requires the plaintiff to show a prima facie case, that the balance of convenience favours the injunction, and that irreparable harm would result otherwise.⁸ This involves a significant balancing act by the court, considering factors like public interest and the strength of any validity challenge.⁸
• Permanent Injunction: Issued after a final finding of infringement, prohibiting infringing acts for the patent’s remaining term.¹²
• Monetary Relief: The plaintiff must choose either damages or an account of profits.³ This strategic choice depends on whether the patentee’s losses or the infringer’s gains are likely higher and more provable.³⁹

• Damages: Compensate the patentee for losses caused by the infringement, calculated based on lost profits or a reasonable royalty.⁶ Courts may award enhanced damages for wilful infringement.²⁴
• Account of Profits: Requires the infringer to surrender profits earned from the infringing activity.⁸

• Seizure/Forfeiture/Destruction: Courts can order the seizure, forfeiture, or destruction of infringing goods and the primary tools used to make them.³
• Limitations (Section 111): Damages/profits may be restricted if the infringer proves unawareness of the patent (proper marking required) or if infringement occurred during specific periods (e.g., post-renewal fee lapse, pre-amendment allowance).⁶⁶
• Licensee Rights: Exclusive licensees (Section 109) and compulsory licensees (Section 110) also have standing to sue for infringement under certain conditions.¹

IX. Conclusion

Patent infringement in India is defined by the unauthorized exercise of the exclusive rights granted under Section 48 of the Patents Act, 1970, within the defined territory of India. The determination process involves meticulous claim construction by the courts, followed by a comparison against the accused product or process, considering both literal identity and the doctrines of non-literal infringement, namely the Doctrine of Equivalence and the Pith and Marrow doctrine.

The validity of the patent remains a central and contestable issue throughout infringement proceedings, with statutory provisions allowing invalidity to be raised as a defence or as grounds for a revocation counterclaim. Successful enforcement grants patentees access to potent remedies, including injunctions to halt infringing activities and monetary compensation through either damages or an account of the infringer’s profits.

The jurisprudence surrounding claim construction and the application of equivalence principles continues to evolve as Indian courts balance the protection of innovation with broader considerations of public interest and competition, particularly in technologically complex and sensitive sectors. A clear understanding of these principles, rights, and procedures is essential for patentees seeking to enforce their rights and for accused parties formulating their defence strategies in the Indian patent landscape.

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