An International Guide to
Patent Case Management for Judges

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6.5.2 Infringement analysis What is “infringement”?

The Patents Act, 1970, does not separately define “infringement,” but courts regard any violation of the rights accorded under Section 48 of the Act as an infringement. Like most international jurisdictions, and consistent with Article 28 of the TRIPS Agreement, Section 48 of the Act confers an exclusive right on the patentee to prevent third parties from “making, using, offering for sale, selling or importing for those purposes” the patented product.111 In the case of process patents, the patentee has the exclusive right to prevent third parties from using the process and from “using, offering for sale, selling or importing for those purposes” the “product obtained directly by the patented process.”112 Committing these acts without the patentee’s consent constitutes infringement. Exports as infringement

The Delhi High Court has held that the term “sale,” in the context of another provision of the Patents Act, 1970, includes “exports.”113 The Delhi High Court has also recently granted an interim injunction because exports from India would have also amounted to use in India.114 Proving infringement

A plaintiff must compare the alleged infringing product or process with the granted claim or claims to prove infringement.115 Claim construction precedes this exercise of comparison.116

The Patents Act, 1970, is silent on the doctrine of equivalence and other analogous concepts. The predecessor legislation allowed patentees to sue for infringement even when the infringers counterfeited or imitated the invention.117 Case law under the predecessor legislation suggested that courts would ignore “trifling or unessential variation.”118 Defendants were guilty of infringement if they made “what is in substance the equivalent of the patented article.”119 Case law under the current Act suggests that a similar approach may be followed.120