INDIA Law and Practice Contributed by: Anu Paarcha, Aniruddh Bhatia, Mishthi Dubey and N Parvati, Saikrishna & Associates
of infringement against the adversary. Further, courts may also prescribe the minimum mandate for information and/or documents to be filed. For instance, the High Court of Delhi Rules Govern- ing Patent Suits 2022 (the “Patent Suit Rules”) establish comprehensive requirements under Rules 3A and 4A for furnishing in a plaint to be filed for patent infringement. The patentee seeking to file a patent infringe- ment suit is also free to include other arguments or evidence that help establish the credibility of claims to be made in the plaint, including expert evidence. However, the nature and quantum of evidence introduced by the plaintiff may also vary greatly depending on whether the suit pat- ents cover a product or a process. 2.12 Representative or Collective Action No formal provision exists under Indian law that makes class action lawsuits available to litigants/ rights-holders (as contemplated under US law), including under the laws relating to IP rights. 2.13 Restrictions on Assertion of an Intellectual Property Right The patent rights of the owner of an IP may be restricted/limited in a manner prescribed by the Act. For instance, the rights of the holder of a patent are subject to the Bolar exemption clause under Section 107A of the Act. Such limitation has been read into the Act by way of a notwith- standing clause; as a result, a patentee may not be able to assert its rights against an entity merely using a patented product for research and development. A similar restriction has also been read into the Act for “government use” of granted patents under Section 100 of the Act, which permits the government to use a patented product or pro-
cess for the “purposes of the government” in accordance with the provisions of the Act. A patentee may also find itself unable to assert its rights against third parties under a compul- sory licence that may have been granted in view of the reasonable requirements of the public not being met with respect to the patented inven- tion, or if such invention is not available to the public at a reasonably affordable price or is not sufficiently worked in the territory of India. 3. Infringement 3.1 Necessary Parties to an Action for Infringement An action for infringement should necessarily include the patentee and the adversary alleged to be infringing the suit patent. If the suit is initi- ated by an exclusive licensee of the patentee, they must make the patentee a party to the suit, as either a plaintiff or a defendant. 3.2 Direct and Indirect Infringement While no separate demarcation exists between direct and indirect infringement of a patent in India, direct infringement would result from encroaching upon any of the exclusive rights of a patentee stipulated under Section 48 of the Act, without the permission of the patentee. 3.3 Process Patents In a process patent infringement, a plaintiff is required to prove that the impugned product of the defendant is identical to the product directly obtained by the patented process. Once proved by the plaintiff, and where the subject matter of the patent is a process for obtaining a new prod- uct, or where the plaintiff has shown substantial likelihood that an identical product is made by the process but has been unable to determine
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