The court may, in its discretion, order the unsuccessful party to pay costs to the successful party in an infringement suit. The Code of Civil Procedure provides for the recovery of costs by and under Sections 35 and 35A.
While imposing costs, the court may weigh several factors: for instance, (i) the conduct of the parties; (ii) whether a party has succeeded only in part, even if that party has not been wholly successful; and (iii) whether the party had made a frivolous claim or counterclaim leading to delay in the disposal of the case, or had instituted a vexatious proceeding wasting the time of the court.
Certain guidelines have been laid down in the case of Ten XC Wireless v. Mobi Antenna225 for determining costs in patent infringement suits, including that
- the parties shall submit their estimated future cost at the commencement of trial;
- the parties and court master shall maintain a record of the court time consumed; and
- the unsuccessful party is liable to pay costs to the successful party.
Costs awarded by the court may include:
- the actual costs of litigation;226
- a proportion of another party’s costs;
- a stated amount in respect of another party’s costs;
- costs from or until a certain date;
- costs incurred before proceedings began;
- costs relating to particular steps taken in the proceedings;
- costs relating to a distinct part of the proceedings; and
- interest on costs from or until a certain date.