Patent Protection, Enforcement And Court System In India

PROTECTION

Question 1
What is the term of protection of a patent in India?

Answer 1
In India, a Patent last for twenty (20) years counted from the date of filing and there is no Utility Model in India.

Question 2
Is it possible to extent the lifetime of a patent?

Answer 2
No.

ENFORCEMENT

Question 1
What are the types of patent enforcement action are available in India?

Answer 1
a) Injunctions;
b) Damages and
c) Account of profits.

Question 2
How can the patent owner most effectively make his point to stop an infringement?

Answer 2
Obtain an interim injunction.

Question 3
Are protective orders available in India?

Answer 3
Yes.

Question 4
Does the Indian patent law require the patent owner to send a cease and desist letter to an alleged infringer before a court action can be taken against him?

Answer 4
No for ex parte interim injunction. However, the Civil Procedure Code requires issuance of notice in Civil Suits and the Courts follow the “notice” as rule and ex parte relief as exception.

Question 5
Is it possible to seek a preliminary injunction? If so, how long would this action take?

Answer 5
Possible. Time frame from 6 – 8 months.

Question 6
Is it possible to seek seizures / inspections of suspect goods?

Answer 6
Yes.

Question 7
How long would a patent infringement / patent invalidation case take?

Answer 7
1. Infringement action duration about 24 months.
2. Invalidation action duration about 12 months.
3. Typical cost – this can vary according to complexity of case, whether it is contested and seniority of person handling the case.

Question 8
How are damages / royalties assessed?

Answer 8
Plaintiff’s loss of profits or defendant’s account of profits.

Question 9
Can the alleged infringer sue for damages if the patent owner fails to prove infringement in court of India?

Answer 9
Yes. Only for a claim for costs.


COURT SYSTEM

Question 1
Briefly describe any cases of patent invalidation or patent infringement in India?

Answer 1
Farbwerke Hoechst Aktiengesellschaft vs. Unichem Laboratories [AIR 1969 Bom 255]
An invention consisting of the production of new substances from known materials by known methods cannot be held to possess new subject matter merely on the ground that the substances produced are new, for the substances produced may serve no useful purpose, in which case the inventor will have contributed nothing to the common stock of useful knowledge (the methods and materials employed being already known) or of useful materials (the substances produced being, ex hypothesi, useless)

Question 2
How efficient are the courts in disposing IP litigation cases in India?

Answer 2
Reasonably efficient.

Question 3
Are the judges technically qualified?

Answer 3
Judges handling patent infringement cases are not technically qualified. However, in the case of patent invalidation, the Technical Members are technically qualified.

Question 4
Do the courts rely on precedent cases decided in foreign countries?

Answer 4
Yes. United Kingdom.


Question 5
How are foreigners treated by the courts in India?

Answer 5
Same as locals.

Question 6
What is the time frame for a patent invalidation / patent infringement suit to be decided?

Answer 6
2 – 3 years.

Question 7
What step(s) must be taken to appeal a court decision in India?

Answer 7
File a notice of appeal.