Intellectual property

rights-II
ASSIGNMENT

Topic :-PATENT INFRINGEMENT

SUBMITTED BY :- SUBMITTED TO :-

NAME : - AVINASH KUMAR MISHRA Dr. SAJID ZAHEER AMANI

Enrol. No. : - 14-0292

COURSE : - B.A.LL.B (HONS) (5TH YEAR)

SEMESTER : - 9TH

SECTION :- A

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who

supported me throughout the course of this INTELLECTUAL PROPERTY
RIGHTS-II ASSIGNMENT. I am thankful for their aspiring guidance, invaluably
constructive criticism and friendly advice during the project work. I am sincerely
grateful to them for sharing their truthful and illuminating views on a number of
issues related to the project.

I express my warm thanks to my SIR Dr. SAJID ZAHEER AMANI for his
lecture on this assignment topic in the class.

I also take this opportunity to thank the staff of JAMIA MILIA ISLAMIA
who supported me very much in making of this project specially the LIBRARY
members who provided me the right book.

Lastly I want to thank my friends and family who are with me and supported
me whenever I needed to complete this project, and without whose help this
assignment might not be so fruitful.

Thank you,

AVINASH KUMAR MISHRA

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 TABLE OF CONTENTS: -

1. INTRODUCTION
Intellectual Property
Patents
Patent infringement
2. PATENT INFRINGEMENT
3. PATENT INFRINGEMENT LITIGATION
4. TYPES OF PATENT INFRINGEMENT
5. PENALTIES FOR PATENT INFRINGEMENT
6. PATENT INFRINGEMENT IN INDIA
7. FAMOUS PATENT INFRINGEMENT CASES
8. LAWSUITS ON PATENT INFRINGEMENTS IN INDIA
9. CONCLUSION.

INTRODUCTION:-

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 Intellectual property (IP) is a legal field that refers to creations
of the mind such as musical, literary, and artistic works; inventions; and
symbols, names, images, and designs used in commerce, including
copyrights, trademarks, patents, and related rights. Under intellectual
property law, the holder of one of these abstract “properties” has certain
exclusive rights to the creative work, commercial symbol, or invention by
which it is covered.

Intellectual property rights are a bundle of exclusive rights over creations

of the mind, both artistic and commercial. The former is covered by
copyright laws, which protect creative works such as books, movies,
music, paintings, photographs, and software and gives the copyright
holder exclusive right to control reproduction or adaptation of such
works for a certain period of time.

The second category is collectively known as “industrial properties”, as

they are typically created and used for industrial or commercial
purposes. A patent may be granted for a new, useful, and non-obvious
invention, and gives the patent holder a right to prevent others from
practising the invention without a license from the inventor for a certain
period of time. A trademark is a distinctive sign which is used to prevent
confusion among products in the marketplace.

An industrial design right protects the form of appearance, style or

design of an industrial object from infringement. A trade secret is an item
of non-public information concerning the commercial practices or
proprietary knowledge of a business. Public disclosure of trade secrets
may sometimes be illegal.

The Agreement provides for norms and standards in respect of following

areas of intellectual property:

• Copyrights and related rights

• Trade Marks
• Geographical Indications
• Industrial Designs
• Lay out Designs of Integrated Circuits
• Protection of Undisclosed Information (Trade Secrets)
• Patents
• Plant varieties
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IMPORTANCE OF IPR
a) Give the inventors exclusive rights of dealing.
b) Permit avoiding of competitors and increase entry barriers.
c) Allow entry to a technical market
d) Generate steady income by issuing license.
e) A registered intellectual property right is property, just like your
capital assets. However, it is an asset that can be leveraged through
licensing and can therefore be highly valuable. It can also greatly
enhance the value of a business when it is sold.
f) Benefits the economy
g) Promotes innovation
h) “Open source” relies on IPR
Open source mechanisms are becoming popular in certain sectors such
as software (cf. GPL licences, etc.). While the common perception is that
such mechanisms are characterized by the absence of any IP protection,
it is worth noting that a typical GPL (General Public) licence actually
relies on IP rights as it is typically a copyright license which remains
valid as long as certain conditions are complied with (e.g. freedoms
received by the licensee must be passed on to subsequent users, even
where the software is modified).
i) Providing guarantees regarding the quality and safety of products

PATENTS
A patent is a set of exclusive rights granted by a sovereign state to
an inventor or assignee for a limited period of time in exchange for
detailed public disclosure of an invention. An invention is a solution to a
specific technological problem and is a product or a process.

The grant of patents for inventions in India is goverened by the Patents

Act. 1970 and the Patent Rules 1972.

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• A government authority or license conferring a right or title for a set
period, especially the sole right to exclude others from making, using, or
selling an invention.

This refers to innovations – new or improved product and processes

which are meant for industrial applications. This is a territorial right
which requires registration for a limited time. Patent is a contract
between an inventor as an individual and the society as a whole. The
inventor has exclusive right to prevent anybody making use of and/or
selling a patented invention. Of course, this is only for a specific
duration till the inventor discloses the details of invention to the public.

Conditions to be satisfied by an invention to be Patentable:

1. Novelty
2. Inventiveness(Non-obviousness)
3. Usefulness
1. Novelty
A novel invention is one,which has not been disclosed,in prior art where
prior art means everything that has been published,presented or
otherwise disclosed to the public on the date of patent.

2. Inventiveness(Non-Obviousness)

A patent application involves an inventive step if the proposed invention

is not obvious to a person skilled in the art i.e skilled in the subject
matter of the patent application.

3. Usefulness

An invention must posses utility for the grant of patent.No valid patent
can be granted for an invention devoid of utility.

Types of patents
i) Utility patents
ii) Design patents
iii) Plant patents
i) Utility patents

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A utility patent may be available for inventions which are novel, useful,
and non-obvious. Utility patents can be obtained for the utilitarian or
functional aspects of an invention. Utility patents have a term of twenty
years from the date of filling the patent application with the patent and
trademark office, although term extensions are available in certain
specific situations. During the term of a utility patent, maintenance fees
must be paid in order to sustain the patent.

ii) Design patents

It can be granted to any one who invents a new, original ornamental

design for an article of manufacture. A design patent protects the
ornamental design (i.e. appearance) of the article. A design patent has
duration of 14 years from the date of filing. Design patents are not
subject to maintenance fee payments.

iii) Plant patents

Plant patent can be granted to any one who invents or discovers and
reproduces a new variety of plant. A plant patent may be issued for the
invention or discovery of a distinct and new variety of plants, which may
be asexually reproduced. To qualify for this type of patent, the discovery
or invention must be novel, distinct, and non-obvious. A plant patent has
a term of 20 years from the date of filing.

Rights of a Patentee( section 48 of The Patent Act 1970)

The owner of the "Patent", i.e. patentee is entitled to deal with such
property in the same manner as owner of any other moveable property.
a. The patentee can sell the whole or part of this property (Patent).
b. He can also grant license to other(s) to use the patented property.
c. He can also assign such property to any other(s).
Such sale, license or assignment of such patented property naturally has
to be for valuable consideration, acceptable mutually.

Patent infringement :-
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Patent infringement is the commission of a prohibited act with respect to
a patented invention without permission from the patent holder.
Permission may typically be granted in the form of a license. The
definition of patent infringement may vary by jurisdiction, but it typically
includes using or selling the patented invention. In many countries, a
use is required to be commercial (or to have a commercial purpose) to
constitute patent infringement.

The scope of the patented invention or the extent of protection is defined

in the claims of the granted patent. In other words, the terms of the
claims inform the public of what is not allowed without the permission of
the patent holder.
Patents are territorial, and infringement is only possible in a country
where a patent is in force. For example, if a patent is granted in the
United States, then anyone in the United States is prohibited from
making, using, selling or importing the patented item, while people in
other countries may be free to exploit the patented invention in their
country. The scope of protection may vary from country to country,
because the patent is examined -or in some countries not substantively
examined- by the patent office in each country or region and may be
subject to different patentability requirements.

Indirect infringement
In certain jurisdictions, there is a particular case of patent infringement
called "indirect infringement." Indirect infringement can occur, for
instance, when a device is claimed in a patent and a third party supplies
a product which can only be reasonably used to make the claimed
device.

Patent Infringement Litigation: The Basics1

Patent infringement occurs when another party makes, uses, or sells a

patented item without the permission of the patent holder. The patent
holder may choose to sue the infringing party to stop his or her activities,
as well as to receive compensation for the unauthorized use. Since
intellectual property is governed by federal law, the patent holder must
sue the unauthorized party in federal district court.

1
https://smallbusiness.findlaw.com/intellectual-property/patent-infringement-and-litigation.html

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Patent holders must bring infringement actions within six years from the
date of infringement; if the suit is not brought in this time limit, it is
time-barred, ratifying the infringement. While patent litigation proceeds
much like any other federal case, the complicated legal issues
surrounding patent validity and infringement are reserved for the court's
determination, although some patent litigation cases use juries for other
aspects of the overall case.

Defenses to a Patent Infringement Lawsuit

The alleged infringer typically counters the patent holder's suit by

alleging that the patent is not valid. Patents are invalid if the holder
included fraudulent information in the U.S. Patent and Trademark Office
application; if the patent resulted from anticompetitive business
activities; or if the alleged infringer can show that the patent did not
meet the requirements of novelty and nonobviousness required for patent
protection. Novelty requires that the invention be entirely new,
while nonobviousness means that the invention cannot be a variation or
an obvious improvement of an existing invention.

The patent holder bears the burden of proof to show that the defendant
infringed the patent. The plaintiff must prove infringement by a
preponderance of the evidence. This standard means that the greater
weight of the evidence must show that the patent is infringed.

What Are the Types of Patent Infringement?2

The various types of patent infringement occur when a person or
business uses parts of a patented idea, method, or device without
permission. Patent infringement is also known as patent violation or even
stolen ideas. It could involve either using or selling the patented
invention or idea. Before you can sue someone for patent infringement,
you must figure out who is at fault. It's not always as obvious as you
might think. Understanding the different types of patent infringement
helps to determine who is accountable.
Direct Infringement
Making, using, selling, trying to sell, or importing something without
obtaining a license from the patent holder is considered direct patent
infringement. The offender must complete this act willfully and within
the United States.
2
https://www.upcounsel.com/types-of-patent-infringement

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Indirect Infringement
Indirect infringement includes contributory infringement and
inducement to infringe a patent. Under these terms, even if a company
isn't the one that originally infringed on the patent, that company can
still be held accountable for patent infringement.
Contributory Infringement
This type of infringement involves the purchase or importation of a part
that aids in creating a patented item. To prove contributory infringement,
one must show that the component's main use would be to create a
patented item. A generic item that has other uses usually doesn't qualify
in proving contributory infringement.
Induced Infringement
This occurs when a person or company aids in patent infringement by
providing components or helping to make a patented product. It occurs
through offering instructions, preparing instructions, or licensing plans
or processes.
Willful Infringement
Willful infringement exists when a person demonstrates complete
disregard for someone else's patent. Willful infringement is especially
damaging to defendants in a civil suit. The penalties are much higher,
and typically defendants must pay all attorney and court costs if they are
found guilty.
Literal Infringement
To prove literal infringement, there must be a direct correspondence
between the infringing device or process and the patented device or
process.
Doctrine of Equivalents
Even if the device or method doesn't exactly infringe a patent, a judge
might find in favor of the patent holder. If the device does basically the
same thing and produces the same results, it could be an infringement.
There are five ways to justify a case of patent infringement:

1. Doctrine of Equivalents
2. Doctrine of Complete Coverage
3. Doctrine of Compromise

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 4. Doctrine of Estoppel
5. Doctrine of Superfluity

Sometimes the end user is not even aware that he or she is using a
patented item unlawfully. Other times, there are too many people using
the item to sue all of them. Rather than suing end users, it might be best
to sue those who are knowingly trying to infringe on a patent.

Penalties for Patent Infringement

When someone is found guilty of patent infringement, the penalties
typically include monetary relief to the patent holder. The most
important of these is compensatory damages. These cover the patent
owner's lost profits because of the patent infringement. The amount of
these damages is set after the value of the patent has been determined.
Damages may also include the actual money received by the infringer.
The patent holder is also eligible to receive court costs and attorney
fees that were paid to take the infringer to court.
If a defendant is found guilty of deliberate infringement, the patent
holder is eligible for increased damages. These damages can be up to
three times the normal compensatory damages. These damages can only
be claimed from the date the patent is issued, and the claim can only go
back six years prior to the filing of the infringement claim.
Injunctions are another type of penalty for patent infringement.
Preliminary Injunction versus Permanent Injunction

 A judge may grant a preliminary injunction at the beginning of the

case if the judge believes the patent infringement will cause
hardship to the patent holder
 If patent infringement exists, then the judge may grant a
permanent injunction for the patent infringer to stop activities

Patent Infringement in India

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 For infringement disputes in India, the court levels start with the
District Court, then move up to the High Court, and finally the Supreme
Court of India. These disputes are handled similarly to those in the
United States. After the filing of a suit, a hearing is held where the
district court reviews the evidence.
If the case deals with both invalidity and infringement, it is heard by the
high courts. Furthermore, a specialized board, the Intellectual Property
Appellate Board, hears all the appeals related to patent infringement.
In India, the process goes as follows:

 Everyone involved is properly notified

 Before the trial begins all the evidence is presented by both parties
 After the decision, both parties can appeal to the IPAB

How to Avoid Patent Infringement

Spending money to avoid patent infringement could save you or your
company a lot of money in the future. There are many reasons to avoid a
patent infringement lawsuit.
Cost
Lawsuits are expensive, but patent lawsuits tend to cost even more than
traditional ones. Many cost over a million dollars in legal fees alone. If
you are the defendant and lose, you may be required to pay court costs
and the legal fees of the person who accused you of patent infringement.
Time Consuming
If you are sued for patent infringement, you pay with both your time and
your money. Even though the lawyers do most of the work, you will still
spend a lot of time appearing in court and working with the lawyers to
attempt to prove your innocence.
Injunctions
The accuser may ask for a preliminary injunction that could hurt your
business even before the judge gives the verdict. Specifically in India, to
get an injunction, the accuser must prove that the claim has validity,
there is irreparable damage involved, and that the accuser will be greatly
inconvenienced if it is not granted.
Customer Concerns

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The owner of the patent may also go after your customers. Even if you
have not knowingly committed patent infringement, you could lose
customers and damage your reputation during the process.
Recreating Your Product
If you are found guilty of patent infringement, you typically will have to
start completely over in your process for your product or idea. You will
lose valuable time and money. Finding alternatives from the beginning
could be much cheaper.

Common Myths Business Owners Believe About Patent Infringement

Myth: We won't get sued.

 Some company owners believe that they can get away with using a
patent because their company is small and it will go unnoticed
 If the patent is owned by a small company, businesses wrongly
believe that person or company won't have the means to sue an
infringer

Reality: It's not worth the risk.

 Patent lawyers are marketing and doing the homework for

businesses, making lawsuits more accessible. Even small
companies are at risk of being sued.
 There's always a chance a small company could be bought by a
larger company, and that company will have the resources to find
applicable patent infringement
 Patent lawyers often take cases on contingency, which means there
are little or no upfront costs for small businesses

Myth: We know every patent in the industry.

 When people feel that they are experts in their field, they assume
that if there is a related patent, they already know about it.

Reality: It's impossible to know every patent.

 With new technology created every day, a new patent could be filed
without knowledge of others in the industry
 A patent may exist for a product that isn't commercialized and
therefore unknown to competitors

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Permissible Infringement
There are some times when infringement is permissible or at least
excusable. If the patent holder intentionally delays bringing a suit
against the infringer, the infringer could win the case. There are four
other times when infringement is permissible.

 The owner authorizes the sale of a patented article, allowing a

person to sell it to someone else
 An implied license is given when there is also an authorized sale
 A person can repair or replace any part of an item that breaks as
long as that specific part is not patented
 A person can infringe a patent if the purpose is to experiment with
the product

Patent Infringement Insurance

If you get sued for patent infringement, it could cost you a great deal of
money. you could see big costs. If someone copies or steals parts of your
patents, those court costs can also be high.
If you could be at risk for being on the offense or defense of patent
infringement, then you may need to consider patent infringement
insurance.
You have the choice of two types of policies:

1. Defensive policies if you are being sued for patent infringement

2. Offensive policies that cover part or all of your court and attorney
costs if you need to sue someone for patent infringement

Most of the time, patent infringement insurance is not worth the

investment. There are high costs associated with the insurance,
including insurance premiums and copays. The money you spend on
insurance is usually better spent on developing technology or investing
in your company.
For example, patent insurance usually costs between 2 and 5 percent of
the amount of coverage. If you want a million dollars in coverage, it could
cost up to 50,000 dollars. You might also have to pay a copayment of 15
to 25 percent of any lawsuit award covered by the insurance. That means
if the suit costs one million dollars, you will still owe up to 250,000
dollars.
Defensive patent insurance requires a strict process for approval. The
insurer will look closely at your patent portfolio for conflicting patents. If
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there is any chance you could be sued for patent infringement, they
won't cover you. These disadvantages are also true for offensive patent
insurance.
Some Comprehensive General Liability Insurance may offer types of
insurance that cover aspects of patent infringement, such as intellectual
property infringement.

Famous Patent Infringement Cases3

Famous patent infringement cases are found throughout history,
marking important moments in the defense of intellectual property.
Lawsuits related to patent infringement make up a huge portion of the
lawsuits filed each year, and the number is growing.
Inventors, artists, writers, and anyone with the desire to protect his ideas
can do so using any of the following legal actions:

Historic Patent Infringement Cases

The laws and processes surrounding patent infringement have been

developed over many years. In 1790, the United States enacted its first
patent law.
These particular cases played a pivotal role in the laws
regarding intellectual property that we have today:

 In 1853, O'Reilly v. Morse decided that an idea alone cannot be

patented, but only when it is put to use.
 In 1895, a patent case regarding an incandescent lamp showed the
need for detailed patents and invalidated any that are too vague.
 In 1961, Manufacturing Company v. Convertible Top Replacement
Company forced the courts to make a clear difference between
repairing and reconstructing a patented product.
 In 2007, KSR v. Teleflex created a need to disallow patents for
obvious inventions that are not actually inventive.

3
https://www.upcounsel.com/famous-patent-infringement-cases

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Infringement Cases in the Technology Industry
Patent infringement cases abound in the tech industry. Product
development greatly overlaps across the different markets, and
frequently, ideas are so abstract that cases of ownership are too complex
to understand.
Here are a few famous patent cases from the tech world:

 Amazon tried to patent its one-click payment option. However, the

court decided it was too obvious an idea to patent.
 The file-sharing company Napster settled a lawsuit accusing it of
unauthorized distribution of music. It later filed bankruptcy.
 Nintendo was forced to pay a large sum to Tomita Technologies
International, Inc. for its 3DS gaming-system technology.
 Microsoft and Google dueled for five years over patent issues
involving the Xbox gaming system and Motorola smartphones.

Specifics Courts Must Look for in an Infringement Case

When deciding on the merits of an infringement case, the courts are
required to look at multiple items, including:

 The plain and ordinary meaning of the claim in view to the way the
patent was used.
 The term's meaning as based on the correspondence between the
USPTO and the inventor.
 The meaning of the term as it is found in other sources, such as
expert testimony and scholarly journals.

 Apple has been ordered to pay $502m (£353m) to a company

called VirnetX after being found guilty of infringing its security
patents.4

“A jury in Texas - which is a popular location for patent lawsuits - said

that Apple's FaceTime, VPN on Demand and iMessage features
improperly used intellectual property owned by VirnetX. Their decision is
the latest ruling in a series of cases which began in 2010 and have been
heard by multiple courts. Kendall Larsen, VirnetX's chief executive, said
the damages were "fair" and based on the sales of more than 400 million
Apple devices."The evidence was clear," Mr Larsen told Bloomberg. "Tell

4
https://news.sky.com/story/apple-to-pay-500m-in-long-running-patent-infringement-case-11327181

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the truth and you don't have to worry about anything." Critics have
labelled VirnetX as a "patent troll" because it appears to depend on
damages issued in patent infringement cases for its revenues. A jury has
ordered Samsung to pay Apple $539 million for allegedly copying its
patented smartphone features5. Both companies have been in court since
2011, but a retrial over how much Samsung should pay ended last week.
The case settles one issue in a long-running feud between both
companies. After nearly five days of deliberations, a U.S. jury on
Thursday said Samsung Electronics Co Ltd should pay $539 million to
Apple Inc for copying patented smartphone features, technology
publication CNET reported, bringing a years-long feud between the
technology companies into its final stages.

The world's top smartphone rivals have been in court over patents since
2011, when Apple filed a lawsuit alleging Samsung's smartphones and
tablets "slavishly" copied its products. Samsung was found liable in a
2012 trial, but a disagreement over the amount to be paid led to the
current retrial over damages where arguments ended on May 18.

Samsung previously paid Apple $399 million to compensate Apple for

infringement of some of the patents at issue in the case. The jury has
been deliberating the case since last week.

Lawsuits on Patent infringements in India and

Pharma Patents6

Patent gives exclusive rights to the owner to treat his intellectual

property well by protecting it from others. Therefore enforcement of
patent right is the major function of Indian Patent Act 1970. Whenever
any patent applicant or patent right holder is aggrieved in enforcing his
patent right under Indian patent act, he can approach the appropriate
judicial authority to enforce his patent rights by way of filing law suits for
infringement. This essay illustrates the patent jurisprudence in India

5
https://www.businessinsider.com/samsung-apple-lawsuit-patent-infringement-2018-5?IR=T
6
https://blog.ipleaders.in/patent-infringement/

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with various case studies on law suits on patents infringement and
pharma patents.

Patent Jurisprudence in India

 The Indian Patent Act 1970 is an act which covers the patent
jurisprudence in India. This act was amended in 1999, 2002 and
2005 to adhere to the WIPO and TRIP guidelines on Patents.
With these amendments, there is a paradoxical change in patent
regime in India.
 The process patent of Indian patent regime is extended to
product patent regime and the drugs, agriculture, and
pharmaceutical sectors also being covered in new patent regime.
Since 2005 amendments, there are many litigations on patent
right infringements and therefore patent jurisprudence is
evolving with various judgements on many patent related cases
by High court and Supreme court.
 Indian patent law protects both product patent and process
patent.
 In case of process patent infringement, the burden of proof lies
on the defendant and in case of product patent infringement the
burden lies on the patentee. It is important to have a strong IP
regime in order to promote innovation and also to attract new
investments in India. Further strong IP regime also promotes
research and development in India and consumer will also be
benefitted with new innovative products.

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Law suits on Patent Infringements

Patent infringement is not defined in Indian patent Act, but patent rights
are described in the act. Patent right includes making, distributing,
mortgaging, or selling the invention in India. Therefore, anything which
interferes such patent rights may be considered as infringement of
patent rights. Hence, unauthorized making, using, offering for sale,
selling any patented invention, or importing into India of patented
invention during the live term of a patent may be considered as patent
right infringement. In the initial phase, law suits of patent infringement
were dealt with the tradition of civil suits of Indian court and civil
remedies were awarded. Over the years, patent jurisprudence evolved
and judgements on patent suits are centered on enforcement of rights of
patent holder.

Over last 2-3 years number and nature of patent litigation has evolved
dramatically. Innovators have not restricted themselves to mere gaining
patent protection for their invention, but also aggressively protecting
their patent right from being infringed upon by their competitors.
Therefore, in recent years, protection and enforcement of patent right are
the major points of patent litigation. Further, patent holders are also
aggressively litigating to challenge the claim of new patent by their rivals.

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CASE STUDIES ON LAW SUITS ON PATENT
INFRINGEMENTS AND PHARMACEUTICAL
PATENTS IN INDIA

Gleevec case of Novartis case

In this case, Novartis , a swizz based pharma company applied for patent
right of its beta crystalline form of Imatinib mesylate( Gleevec). The
patent claim was objected by CIPLA and other generic drug producers.
The patent claim was rejected by Indian patent office and a writ petition
was filed in Hon.

Madras high court. Novartis has questioned the constitutional validity of

3(d) section of the patent act. Novartis contended that the term ‘efficacy’
in section 3(d) is vague and ambiguous and against article 14 of the
Constitution of India. However, Hon. Madras High court dismissed writ
petition and upheld the constitutional validity of section 3(d).

Second appeal was filed by Novartis in Intellectual Property Appellate

Board (IPAB) and IPAB has upheld the novel and invention aspect of
Novartis claim, but rejected the claim of patentability under section 3(d).
This order of IPAB was challenged in the Hon. Supreme court of India by
filing an SLP.

However, in 2013, the Hon. Supreme court of India has dismissed SLP
and upheld that the Novartis claim was failing on both the test of
invention and patentability as per the provisions of section 2(j), (ja ) (l)
and section 3(d) of the patent act.

The landmark judgement in patent litigation is epitome of patent

jurisprudence in India. Because, the judgement of the Hon. Supreme
court of India is illustration of balancing between the patent holder right
and public right. It was clearly stated that evergreening of patent by
patent holder and exploitation of general public and prohibition of
competition of rivals are not the intention of the patent act.

Indeed, the Hon. Supreme court upheld in paragraph 191 of the said
judgement clearly stated that section 3(d) is valid and it does not disallow
any right to patent on incremental innovation provided that the said
incremental innovation fits into test of patentability.

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 Novartis vs. Cipla case

In another patent suit, Novartis filed suit against Indian generic drug
maker Cipla from making or selling generic copy of Novartis’s “Onbrez”.
In this case, temporary injunction was issued by Hon. Delhi High court
against Cipla to protect the patent right of Novartis. The Hon. Delhi High
court has cited Roche vs Cipla case, and observed that a strong prima
facia case was established and validity of the patent of Novartis was not
strongly disputed by Cipla. Further, Cipla’s counter arguments on the
basis of “epidemic” or a “public health crisis”, unable to manufacture the
same in India by Patentee and high cost of patented drug were not
accepted by the Hon. Delhi High court. Therefore, claim of “urgent unmet
need” for the drug in India was rejected by Hon. Delhi High court. Hence,
the court granted injunction against Cipla to prevent patent infringement
of Novartis.
This case is a classic illustration of patent jurisprudence in India to
enforce the patent rights in a fair manner and to prevent inappropriate
application of exemption clauses under patent act with a vested interest
to infringe the patent rights of patentee. Further, the apprehension about
the possibility of discrimination between MNC and Indian company in
Indian patent regime was proved to be wrong.

SYMED Labs vs. Glenmark Pharmaceuticals case

In another case of SYMED Labs vs. Glenmark Pharmaceuticals,
Glenmark Pharmaceuticals Laboratories was allegedly infringing two of
SYMED patents: IN213062 & 213063. SYMED filed suit against
Glenmerck in Delhi high court.

The court observed that there was a prima facie case in favour of
SYMED. Further, the court also observed that protection to the patent
processes ought to be granted to the SYMED as damages will not be an
effective remedy. Thus, there will be irreparable loss and injury due to
the misuse of patents by Glenmerck. Further, the balance of convenience
was also found to be in favour of SYMED. Thus the court granted an ad
interim injunction restraining Glenmark from manufacturing, selling,

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offering for sale, advertising or directly or indirectly dealing in the
production of Linezolid. Thus, infringement of the SYMED’s registered
Patents was effectively remedied by the court.

Maj. (Retd.) Sukesh Behl & Anr. vs Koninklijke Phillips case

In this case counterclaim for revocation of the suit under Section

64(1)(m) of the Patents Act, 1970 (for short “the Patents Act”) for non-
compliance of the provisions of Section 8 was made by Sukesh Behl. In
the original suit Koninklijke Phillips has sued for permanent injunction
restraining Sukesh Behl from infringing its patent and for other
incidental reliefs. However, the court examined counterclaim for
revocation and observed that the failure to comply with the requirement
of Section 8 of the Patents Act would invariably lead to the revocation of
the suit patent under Section 64(1)(m) of the Patents Act. This is
significant judgement in a complex patent jurisprudence to revocation of
the suit on patent infringement.

Bayer Corporation Vs. Union of India 162(2009)

DLT 371
IPR Law– Bayer Corporation, instead of filing a suit for
infringement, filed an inventive writ petition in the Delhi High Court
desiring that since the applications of Cipla “SORANIB” allegedly
infringed its patent, its (Cipla’s) marketing approval application
under the Drugs Act should not even be processed or entertained. It
is for the first time that an attempt is made to link drug approval to
patent infringement in India. However, the Delhi High Court,
denying the injunction, imposed a substantial cost of Rs. 6.75 Lakh
to deter any such future attempts.

Bayer relied on the argument that a combined reading of Section 2

of the Drugs and Cosmetic Act along with Section 48 of the (Indian)
Patent Act, 1970 establishes a Patent Linkage Mechanism under

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which no market approval for a drug can be granted if there a
patent subsisting over that drug. It also claimed that CIPLA’s
“SORANIB” is a “Spurious Drug” as defined under the Drugs Act,
for which market approval cannot be granted.

The Hon’ble High Court of Delhi held that there is no Drug- Patent
Linkage mechanism in India as both the Acts have different
objectives and the authority to determine patent standards, is
within the exclusive domain of the Controller of Patents. Moreover,
the patent linkage will have undesirable effect on the India’s Policy
of Public Health. It further held that the market approval of a drug
does not amount to infringement of patent. Therefore, the patent
infringement cannot be presumed, it has to be established in a
court of law. Such adjudication is beyond the jurisdiction of Drug
Authorities.

Merck vs. Glenmark over “Sitagliptin”

In an interesting note, Hon’ble Supreme Court of India on Special

Leave Petition filed by Glenmark stayed the Delhi High Court order
which passed injunction against Glenmark for the generic drug
Sitagliptin till 28th April 2015. Merck Sharp & Dohme filed an
application for an ad interim injunction restraining the
respondent/defendant Glenmark Pharmaceuticals from using its
patented product Sitagliptin (Indian Patent No. 209816) at the
Supreme Court. The Delhi high court conclusively held that all the
three ingredients (Prima facie, Irreparable injury and balance of
convenience) for passing the order of injunction were established by
MSD and hence injuncted Glenmark from manufacturing and
selling of Zita and Zitamet.

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 CONCLUSION:-
The patent regime in India is mainly governed by the Indian Patent Act
1970 which was amended in 1999, 2002 and 2005 to adhere to the WIPO
and TRIP guidelines on Patents. Since 2005 amendments, there are
many litigations on patent right infringements and therefore patent
jurisprudence has evolved over the years with various judgements on
many patent related cases by High court and Supreme court. The patent
validity is being tested for innovativeness and patentability of patent.

The claim of patent by the patentee during the law suits are being tested
for the above two aspects. If the court is not convinced with these
aspects, in many cases, the patent claim of patent applicant was
dismissed by Indian judiciary.

However, if the patent right is established by the patentee, by

establishing three essential elements like prima facie case, irreparable
injury and balance of convenience, in such cases, injunction orders were
passed by the courts to prevent the infringement and suitable remedies
to protect the patent right were also passed in various law suits of patent
infringement.

Post grant verification of patent during litigation, revoking of patent on

counterclaim and settlement of claim among the disputed patentee are
the other alternative innovation of Indian patent jurisprudence to protect
and enforce patent rights without affecting public interest. Further, in
few case, misuse of exemption clause of pharmaceutical patents was also
injuncted by Indian judiciary.

Non-discriminatory, fair, and innovative patent protection of patent

rights and users of patent are the highlights of various patent case
judgements in various law suits of patent infringement.
Patent Litigation in India has steadily increased over last 2-3 years.
Dramatic swift has been observed in the innovator’s perspective from the
mere aspect of invention to gaining patent protection for their respective
invention. Patent owners have adopted aggressive approach towards their
patent protection and enforcing their proprietary rights as businesses,
are now well-positioned in the realm of patent litigation. The patent
owners are not at all hesitant to challenge the validity of patent rights of
their rivals. There has also been gradual increase in the understanding of
the complex patent infringement and validity issues.
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BIBLIOGRAPHY
STATUTES REFERRED:-
1. Indian Patent Act, 1970
2. The Patent( Amendment ) Act, 2005

WEBSITE REFERRED :-
1. https://wwwupcounsel.com

2. http://www.smallbusiness.findlaw.com

3. http://www.indiankanoon.com

4. http://www.academia.edu

5. http://www.businessinsider.com

6. https://blog.ipleaders.in

BOOKS REFERRED:-
1. DR. S.R. Myneni: Law of Intellectual property ,Asia Law House,
Hyderabad.

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