6.5.3 Defenses to infringement
The rights under Section 48 of the Patents Act, 1970, are expressly subject to other provisions of the Act. Section 107(1) states that all the grounds for revoking a patent for invalidity can be used as defenses to a claim for patent infringement. Defendants can, thus, contest the suit patent’s validity even without filing a counterclaim.
Section 107A recognizes the Bolar exception for defendants to use the patented product or process for developing information for regulatory filings both in India and abroad. The Delhi High Court’s judgment in Bayer Corp. v. Union of India121 carries a detailed discussion of the Bolar exception.
India follows the rule of international exhaustion regarding patents. Under Section 107A(b) of the Act, importing a duly authorized product from a foreign jurisdiction is not an infringement. Thus, the position is similar to that under the Trade Marks Act, 1999,122 but different from the domestic exhaustion rule followed under the Indian Copyright Act, 1957.123
Section 107(2), read with Section 47, contains well-known exclusions from the scope of a patent’s exclusivity, such as the research exemption, educational use and governmental use.