INDIA Law and Practice Contributed by: Mohit Goel, Sidhant Goel, Aditya Goel and Mehr Bajaj, Sim and San, Attorneys at Law
tory regime for indirect or contributory infringement, although courts may impose liability on parties acting jointly to facilitate infringement under common law principles. The scope of protection is determined primarily by the patent claims, construed purposively in light of the specification and drawings. Indian courts recognise both literal infringement and the doctrine of equiva- lents, under which infringement may be found where an accused product or process performs substantially the same function, in substantially the same way, to achieve substantially the same result, notwithstanding minor variations. Key defences include: • invalidity challenges, including lack of novelty, inventive step, patentable subject matter or suf- ficient disclosure; • prior user rights, where the defendant was already using the invention before the patentee’s priority date; • the Gillette defence, where the alleged infringing activity merely follows prior art teachings; • the Bolar/research exemption, permitting use of patented inventions for research, experimentation and obtaining regulatory approvals; • educational use exceptions; • government use and public purpose exceptions; • exhaustion of rights, permitting dealings in lawfully marketed patented products; and • compulsory licensing provisions where statutory conditions are met. In standard essential patent (SEP) disputes, Indian courts recognise FRAND-based defences and assess whether parties have acted as willing licensors or licensees. Courts have increasingly balanced pat- ent enforcement with competition and public interest considerations, particularly in the telecommunications sector. 1.6 Patent Enforcement and Remedies Jurisdiction and Enforcement Forums Patent infringement and revocation actions are pri- marily heard by the Commercial Divisions of the High Courts, particularly the specialised Intellectual Prop-
erty Divisions (IPDs) established by the Delhi, Madras and Calcutta High Courts. Following the abolition of the Intellectual Property Appellate Board in 2021, pat- ent appeals and revocation proceedings are now adju- dicated by the High Courts. The Delhi High Court’s IPD Rules and Patent Suit Rules have introduced streamlined procedures, technical expert assistance and robust case management. Timelines and Validity Challenges Patent disputes are governed by the Commercial Courts Act, 2015, which imposes strict procedural timelines. Interim applications are often heard within a few months, while complex infringement trials gen- erally conclude within two to four years. Patent valid- ity may be challenged through post-grant opposition, revocation petitions or counterclaims in infringement proceedings. The Supreme Court’s decision in Alloys Wobben v Yogesh Mehra clarified that parties cannot pursue parallel revocation proceedings and counter- claims simultaneously. Interim Relief Indian courts routinely grant interim injunctions where the patentee establishes a prima facie case, bal- ance of convenience and irreparable harm. Ex parte injunctions, search-and-seizure orders, the appoint- ment of local commissioners and evidence preserva- tion measures are available in cases of urgency. In SEP disputes, courts have also developed innovative mechanisms such as interim security deposits in lieu of injunctions. Remedies and Costs Available remedies include interim and permanent injunctions, damages, accounts of profits, and the delivery-up, seizure and destruction of infringing goods. Indian courts have increasingly awarded sub- stantial damages, including approximately USD29 million in Ericsson v Lava (2024) and over USD27 mil- lion in Communication Components Antenna v Mobi Antenna (2024). Under the Commercial Courts regime, successful parties may also recover reasonable attor- neys’ fees, expert fees and litigation costs, reflecting a growing trend towards realistic cost awards.
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