Your patent grants exclusive rights to make, use, sell, and import your invention. When someone violates those rights without authorisation, you can act — and the law gives you powerful tools to stop them, recover your losses, and protect your market position.
Under Section 48 of the Patents Act, 1970, a granted patent confers exclusive rights on the patentee — to make, use, offer for sale, sell, and import the patented product or process in India. Any third party who performs these acts without the patentee's consent or a valid licence commits infringement, regardless of intent.
The Act does not explicitly define infringement — it is determined by examining whether the defendant's acts fall within the scope of the patent claims. Claims are construed purposively: courts look at the substance of what was invented, not merely the literal wording. Under the Doctrine of Equivalents, an act may infringe even without literal claim-by-claim correspondence if the accused product or process performs substantially the same function in substantially the same way.
Infringement can only be established against a granted patent — not a pending application. However, once granted, the patentee is entitled to damages from the date of publication of the application (Section 11A), making early action strategically important.
The defendant directly makes, uses, sells, offers for sale, or imports the patented product or uses the patented process without authorisation. This is the most common form — no secondary actor is needed.
A party induces or enables another to infringe — by supplying a key component of a patented combination, or actively instructing others how to use the patented invention. India recognises this through courts applying general tort principles.
Even if the accused product does not literally match each claim element, infringement may still exist if it performs the same function, in the same way, achieving the same result. Established in India through F. Hoffmann-La Roche v. Cipla (Delhi HC, 2015).
Where the patent covers a process for making a new product, and an identical product is found, the burden of proof shifts to the defendant under Section 104A to show their process differs. Critical in pharmaceutical and chemical disputes.
Any of the following performed without the patentee's consent or a valid licence constitute infringement under Section 48 of the Patents Act, 1970.
Making the patented product, or using the patented process to produce any product, in India without authorisation.
Distributing, listing, or offering infringing goods for sale — including on e-commerce platforms, through dealers, or at trade exhibitions.
Deploying the patented product or process commercially — in manufacturing, service delivery, or operations — without a licence from the patentee.
Bringing patented products into India without authorisation — including grey-market imports. Parallel imports are only permitted under Section 107A(b) when duly authorised by the patent holder abroad.
Exporting a patented product constitutes infringement unless it qualifies under the Bolar exemption (Section 107A(a)) — for regulatory filings or R&D. Confirmed in Bayer v. UOI (Delhi HC, 2019).
Applying the patented process in manufacturing or service provision, and selling or using the product obtained from that process. The product itself need not be separately patented.
Use by the Central Government for its own purposes, or by any person authorised in writing by the Central Government.
Making, using, or importing solely for uses relating to development and submission of regulatory information — enabling generic manufacturers to prepare for market entry before patent expiry.
Importing a patented product from a person duly authorised under the law to produce and sell or distribute the product — India follows international exhaustion.
Use of a patented invention for experimental or research purposes, including teaching. Courts have recognised this though it is not expressly codified in the same terms as other jurisdictions.
Section 108 of the Patents Act grants the patentee a choice of powerful civil remedies. Courts may also grant interim relief under Order XXXIX of the CPC before the final hearing — crucial to stopping ongoing harm immediately.
Granted during the pendency of the suit to immediately halt ongoing infringement. The court applies the three-pronged test: prima facie case, balance of convenience, and irreparable harm. Courts may grant ex parte injunctions in quia timet actions (before the infringing product launches) where time is critical.
Granted after trial — restrains the infringer permanently from making, using, selling, offering for sale, importing, or distributing the infringing product or process. The first ever permanent injunction under the Patents Act was granted in Merck v. Glenmark (Delhi HC, 2015). A permanent injunction runs only for the remaining term of the patent.
The patentee may elect either damages or an account of profits — not both. Damages restore the patentee to the position they would have been in absent infringement (lost sales, lost royalties). Account of profits extracts the infringer's actual gains from the infringement. Courts calculate these carefully — Delhi HC awarded ₹244 crore in Ericsson v. Lava (2024) and ₹217 crore in Communication Components v. Mobi Antenna (2024).
In addition to injunction and financial remedies, the court may order the infringing goods, and materials or implements predominantly used to create them, to be seized, forfeited, or destroyed — without payment of compensation to the infringer. This is a critical remedy for counterfeit and grey-market goods.
From discovery of infringement to court relief — a structured approach maximises your chances of a swift, successful outcome.
Collect tangible evidence of the infringing product or process: purchase samples, obtain invoices, take timestamped photographs, preserve marketplace listings, secure WHOIS data for online sellers, and commission independent lab analysis if needed. The most critical step is claim mapping — a detailed technical comparison of each element of your patent claims against the accused product or process, prepared by a technical expert or patent attorney.
Before enforcement, confirm: your patent is granted and in force (not lapsed for non-payment of renewal fees), you are the patentee or have standing as an exclusive licensee (Section 109), and the patent claims cover the accused act. Also assess whether the infringer is likely to raise invalidity defences under Section 107 (which permits any Section 64 revocation ground to be used as a defence). A pre-litigation validity analysis is essential — courts will not grant injunctions against patents with a weak prima facie validity position.
A formal legal notice demanding the infringer immediately stop all infringing acts, withdraw products from market, and account for prior acts. While not mandatory before filing suit, a well-drafted C&D notice serves multiple purposes: it establishes knowledge (critical for damages), creates an opportunity to negotiate a licence or settlement, and demonstrates good faith to the court. Some infringers comply at this stage, avoiding costly litigation entirely.
File a plaint in the appropriate District Court or Commercial Court under Section 104 and the Commercial Courts Act, 2015. Simultaneously apply for an interim injunction under Order XXXIX CPC. The application must demonstrate: a prima facie case of infringement, that the balance of convenience favours you, and that you will suffer irreparable harm if relief is not granted. The court will hear the application urgently — often listing it within days. Complex cases may require expert affidavits on the technical claim mapping.
In almost every defended infringement action, the defendant will raise invalidity as a counterclaim under Section 107 or file a separate revocation petition under Section 64. Be ready with evidence of novelty, inventive step, sufficiency of disclosure, and industrial application. If a counter-claim for revocation is filed, the suit is transferred to the High Court under Section 104's proviso. Build a pre-litigation invalidity-proofing dossier as part of your enforcement strategy.
Full trial proceeds with technical expert evidence, cross-examination, and final arguments. If infringement is proven, the court awards the elected remedy — injunction, damages, or account of profits, plus potential seizure/destruction orders. Cost recovery is also available. Recent landmark awards — ₹244 crore in Ericsson v. Lava (2024) — demonstrate Indian courts are willing to grant significant damages. The limitation period is 3 years from each individual act of infringement under the Limitation Act.
Understanding the infringer's likely defences lets you anticipate and neutralise them before trial. Section 107 allows every ground of revocation under Section 64 to be used as an infringement defence.
The infringer argues the patent was not new at the date of filing — that it was anticipated by prior publication, prior use in India or abroad, or prior public knowledge. The onus to establish invalidity lies on the defendant. The prior art must disclose every element of the claim in a single document (for anticipation).
The invention was obvious to a person skilled in the art at the priority date, in light of common general knowledge and prior art. Courts apply a structured obviousness analysis — mere comparison of chemical structures is insufficient (confirmed in Merck v. Glenmark). Hindsight reasoning is specifically rejected.
Acts performed solely for the purpose of developing information for regulatory submissions in India or abroad do not constitute infringement. This protects generic drug manufacturers conducting bioequivalence studies before patent expiry. Extended in Bayer v. UOI (2019) to include exportation for R&D purposes.
Importing a patented product from a person duly authorised abroad is not infringement. India follows the international exhaustion doctrine — once the patentee has placed the product in the global market (or authorised someone to do so), the patent rights are exhausted and further importation cannot be restrained.
The claimed invention falls within Section 3's excluded categories — particularly Section 3(d) (new forms of known substances without enhanced efficacy, prominent in pharma) or Section 3(k) (software/business methods). This has been the basis of major pharma patent challenges in India.
The patent specification fails to disclose the invention fully and sufficiently — or the patent is not being worked in India (relevant to compulsory licence applications under Section 84, though not a direct invalidity ground). The specification must enable a person skilled in the art to reproduce the invention.
These judgments define how Indian courts interpret and enforce patent rights — from claim construction to damages quantification.
First permanent injunction ever granted in a patent infringement suit under the Patents Act 1970. Upheld the validity and infringement of Merck's patent for sitagliptin (anti-diabetic drug). Rejected Glenmark's obviousness argument and the hindsight approach in obviousness analysis. Established the standard for proving obviousness through expert evidence rather than structural comparison alone.
Pivotal ruling on claim construction — established that Indian courts apply "purposive construction" of patent claims, not merely literal reading. Held that a claim over a chemical structure covers all polymorphs of that structure. Discussed the Doctrine of Equivalents in the Indian context. Despite upholding patent validity and infringement, declined permanent injunction as patent was expiring within months — ordered account of profits instead.
Series of landmark SEP (Standard Essential Patent) disputes where Ericsson enforced GSM, EDGE, and 3G technology patents against Indian handset manufacturers. Established that interim injunctions can be granted in SEP cases when the patentee demonstrates FRAND licensing willingness and the defendant refuses to negotiate. Shaped India's entire SEP enforcement framework. Ericsson v. Lava (2024) culminated in a ₹244 crore damages award — the largest post-trial patent damages judgment in India.
Bajaj alleged TVS's motorcycle infringed its patented DTSi (Digital Twin Spark Ignition) technology. Madras High Court applied the Doctrine of Equivalents — holding that TVS's improved design still infringed Bajaj's claims because it performed substantially the same function in substantially the same way. The Supreme Court also used this case to direct swift disposal of IP disputes in India, reducing delays in patent enforcement.
Comprehensive judicial interpretation of the Bolar exception under Section 107A(a). Held that the Bolar exemption extends to exportation of patented products for regulatory R&D purposes abroad — not just domestic regulatory filings. Clarified the outer limits of what constitutes research use vs. commercial exploitation. Pivotal for pharmaceutical companies engaged in cross-border regulatory filings.
Awarded ₹217 crore in lost profits damages for patent infringement — the second landmark damages award in a single year, following Ericsson v. Lava's ₹244 crore award. Demonstrated that Indian courts are now willing to award substantial, economically meaningful damages in patent disputes. Damages were calculated on the basis of lost profits rather than a royalty rate, signalling a more rigorous approach to patent damages quantification.
No — infringement suits can only be filed after the patent is formally granted. However, once granted, Section 11A of the Patents Act gives the patentee a right to reasonable royalties for acts committed after the date of publication of the application (when the application is laid open) that would have constituted infringement. This means your financial claim can reach back to the publication date even though your suit is filed after grant. File your Request for Examination early to accelerate the grant process and protect the publication-date window.
Three years from the date of infringement, governed by the Limitation Act, 1963. Crucially, each individual act of infringement (each sale, each use, each import) gives rise to a fresh cause of action. This means ongoing infringement continuously renews the limitation period — you are not barred from suing for recent acts even if earlier acts are time-barred. However, delay can affect interim relief: courts consider whether the patentee's inaction amounts to acquiescence when deciding whether to grant an interim injunction.
Yes — Section 107 expressly permits the defendant to raise any ground of revocation listed in Section 64 as a defence in infringement proceedings. If the defendant files a counter-claim for revocation (not just a defence of invalidity), the suit is automatically transferred to the High Court under Section 104's proviso. A revocation petition carries broader consequences — the court can amend the claims under Section 58. A revocation petition can even be maintained after the patent has expired if there is a pending infringement suit, because invalidity can affect the damages assessment.
An interim (interlocutory) injunction is granted during the pendency of the suit — its purpose is to halt ongoing harm until the court can adjudicate the full merits. It requires showing a prima facie case, balance of convenience, and irreparable harm. It is temporary and can be varied or vacated. A permanent injunction is granted after a full trial on the merits — it is the final substantive relief and permanently restrains the infringer. In India, the first permanent injunction under the Patents Act was only granted in 2015 (Merck v. Glenmark). Practically, the interim injunction is often the most decisive relief because it stops the infringer immediately and its financial terms (if a cross-undertaking is required) shape the settlement dynamic.
Yes — Section 109 gives an exclusive licensee the right to institute infringement proceedings if the infringement was committed after the date of the licence. The court considers losses suffered by the exclusive licensee (not just the patentee) when awarding damages or an account of profits. A compulsory licensee under Section 84 also has limited rights to take infringement proceedings under Section 110. A non-exclusive licensee, however, does not have independent standing to sue — they must join the patentee as a plaintiff.
Yes — Indian patents require annual renewal fees payable from the 3rd year onward. A patent that lapses due to non-payment of renewal fees cannot be enforced for the period of lapse. The patent may be restored under Section 60 if the lapse was not intentional and an application is made within 18 months of lapse. Always check your renewal fee schedule before filing an infringement suit — a lapsed patent is a critical vulnerability that the defendant will exploit immediately to challenge both the suit and any interim injunction application.
Section 104 requires patent infringement suits to be filed in a District Court having jurisdiction — typically determined by where the cause of action arises (where infringement is occurring) or where the defendant resides or carries on business. The Commercial Courts Act, 2015 has established Commercial Divisions in High Courts and commercial courts at district level for IP disputes above the specified value threshold (currently ₹3 lakh). If the defendant files a counter-claim for revocation, the suit is automatically transferred to the High Court. The Delhi, Bombay, Madras, and Calcutta High Courts are the primary patent enforcement forums in India.
Patent infringement under the Patents Act, 1970 is a civil remedy — not a criminal offence. Unlike copyright or trademark infringement, there are no criminal provisions for patent infringement in India. However, related criminal provisions may apply in specific circumstances: if counterfeit products are sold under false descriptions, consumer protection or trade description laws may apply; if the infringement involves fraud, IPC provisions may be invoked. The primary enforcement mechanism remains the civil suit under Sections 104–115 of the Patents Act.
Search existing patents before filing or asserting rights. Identify prior art, assess freedom to operate, and discover potential infringement targets early.
Secure your patent with a properly drafted complete specification and claims. Strong claim drafting is the foundation of successful enforcement.
Protect creative works — books, software, music, films — with enforcement under the Copyright Act, 1957. Civil and criminal remedies available.
Patent infringement doesn't stop on its own — and delay weakens your case for interim injunction. The sooner you act, the stronger your position.