INDIA Law and Practice Contributed by: Anu Paarcha, Aniruddh Bhatia, Mishthi Dubey and N Parvati, Saikrishna & Associates
6.4 Injunctions Pending Appeal During appeal – usually on the first day – the appellant would have to establish that it would suffer irreparable harm if the injunction were to continue during the pendency of the appeal. The appellate court may then stay the injunction and would usually order a monetary deposit in its place. However, this is discretionary, and the appellate court may instead not stay the injunc- tion and allow the injunction to continue during the pendency of the appeal. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings The provisions for appeal are codified primarily under the Commercials Courts Act, the CPC and the Patents Act, 1970. These provisions provide the forum and the timeline for the appeal. 7.2 Type of Review The appeal will involve a review of the grounds raised therein, which typically relates to the entire decision. However, the onus would be on the appellant to point out the errors in the first decision, both legal and factual, based on which it has appealed the decision. Pertinently, the appellate court would usually assess whether there were errors in applying the law or in inter- preting the patent claims, rather than re-exam- ining the evidence presented at trial. The courts tend to respect the factual findings made by the lower courts unless there is a substantial reason to overturn them based on legal grounds.
loss proved. Damages can include provisional damages, punitive damages and enhanced damages, depending on the factual matrix of the case (such as punitive or enhanced damages for wilful infringement, for repeat infringement, etc). Further, the court may also order payment of attorney fees (known as legal costs) as well other costs per actuals; however, this awarding of costs is entirely at the discretion of the court, and is primarily governed by Section 35, 35A and 35B of the CPC. In the case of non-compliance with the court order, the court can, on application by a par- ty, initiate contempt proceedings against the defaulting party which could lead to imprison- ment, fine, compensation or all of these. 6.2 Rights of Prevailing Defendants If a defendant succeeds, the court is likely to grant relief, including a declaration of non- infringement. The court would typically also order that costs be borne by the plaintiff, and that any damages that the defendant has established also be granted to the defendant. The extent of the damages and costs (includ- ing attorney fees) is also at the discretion of the court, but would typically be calculated on the basis of some objective material on record. Fur- ther, the defendant may also be entitled to dam - ages awarded due to interim relief, if at the time of granting said relief the plaintiff had undertaken to compensate the defendant if the latter suc- ceeded at trial. 6.3 Types of Remedies Similar remedies apply for all IP rights in India – ie, injunction, damages or account of profit and costs.
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