A patent is an invention registered under the Indian Patents Act, 1970 which gives the holder of a patent the exclusive right to prohibit/restrain any person from manufacturing, distributing, or selling such invention as more particularly mentioned in Section 48 of the Act. Commission of any such act by any person without the permission of the patent holder shall deem to be an infringement of the said patent.
The Patent Act does not specify the instances in which infringement would occur, however under Section 48 of the Act lists down 2 kinds of activities which, if done without the consent of the patent holder, would amount to infringement under the Act, namely:
In other words, if any person without the consent of the patent holder, uses, sells, imports, or offers to sell any patented product or process, then such action would constitute infringement under the provisions of the Act.
In Novartis AG and Another vs. Cipla Limited (I.A. No.24863/2014 IN CS(OS) 3812/2014), the Delhi High Court held that the act of making and selling a generic copy of the Plaintiff’s drug amounted to infringement and granted an injunction restricting Cipla from making and selling such generic copy of the Plaintiff’s patented drug.
In this case, Novartis had filed a suit against Cipla seeking damages for infringement of its patents covering Onbrez (an indacaterol-drug used to treat chronic obstructive pulmonary disease) before the Delhi High Court.
The following acts do not amount to infringement:
1. Use by the Government:
As per Section 47 of the Act, the Government or any person authorized by the Government can make use of the patented product/process for its use and such use by the Government will not infringe the rights of the patent holder.
2. Use of patented inventions on foreign vessels:
As per Section 49 of the Act, a patented invention is not infringed if it is in the body or for its construction or working on a foreign vessel/ aircraft/ land vehicle that is in India temporarily or by accident. However, this benefit is available only to vessels/aircraft or vehicles of such countries that provide reciprocity to Indian vessels/aircraft or vehicles.
3. Use for research purposes:
Use by any person of any patented invention for the purposes of research or experimentation, including imparting instructions to students, does not amount to infringement under the Act.
4. Supply of patented products to medical institutions:
A patented invention in respect of any medical device, drug, or medicine may be imported by the Government for its use or distribution to hospitals, dispensaries, and medical institutions maintained by the Government.
5. Bi-polar provisions:
As per Section 107A of the Act, any act of making, using, selling, or importing a patented invention for the purposes of development or submission of information under the law does not amount to infringement.
Violation of any of the exclusive rights of a patent holder by any person amounts to infringement of a patent. Any patent holder aggrieved by such acts can file a suit for infringement before the concerned District Court or High Court. A patent is an important intellectual property of the patent holder and must be protected.