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Patents Act, 1970 — Enforcement & Commercial Litigation

Patent Infringement Lawyers in India

When proprietary technology is copied or unauthorized products enter the market, swift and decisive legal action is necessary to protect commercial market share. LLM Advocates represents patent owners and defendants in infringement suits, revocation proceedings, and interim injunction hearings before the High Courts of India.

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Exclusive Rights & Infringement Under Section 48

Under Section 48 of the Patents Act, 1970, a patent grant confers upon the patentee the exclusive right to prevent third parties from unauthorized acts without consent:

Product Patent Rights

The exclusive right to prevent third parties from making, using, offering for sale, selling, or importing for those purposes the patented product within India.

Process Patent Rights

The exclusive right to prevent third parties from using that process, and from using, offering for sale, selling, or importing products obtained directly by that process.

Burden of Proof (Section 104A)

In suits for infringement of a process patent, the court may direct the defendant to prove that the process used by them to obtain an identical product is different from the patented process.

Remedies in Patent Infringement Suits (Section 108)

Patent suits are instituted in Commercial Courts or High Courts with original civil jurisdiction (such as the Delhi High Court). The relief that a court may grant includes:

Temporary & Permanent Injunctions

Restraining the defendant from manufacturing, distributing, or commercializing infringing articles pending final adjudication under Order XXXIX Rules 1 & 2 of the CPC.

Damages or Accounts of Profits

Under Section 108(1), the patentee can elect either damages sustained due to infringement or rendition of accounts of all profits earned by the infringing party.

Anton Piller & Seizure Orders

Court Commissioner appointments to enter manufacturing premises unannounced, inspect processes, seize infringing stocks, and preserve technical documentation.

Delivery Up & Destruction

Orders directing the infringing party to deliver up or destroy all infringing materials, molds, tools, and packaging under Section 108(2).

Defendant Strategy: Revocation Under Section 64

In Indian patent litigation, an infringement claim is almost universally met with a Counterclaim for Revocation under Section 64. Under Section 104, where a counterclaim for revocation is filed, the suit along with the counterclaim is immediately transferred to the High Court.

Common revocation grounds include: lack of novelty or anticipation by prior art (Section 64(1)(e)), obviousness and lack of inventive step (Section 64(1)(f)), non-patentability under Section 3, insufficiency of description (Section 64(1)(h)), or failure to disclose foreign filings under Section 8.

Pre-Litigation Considerations

  • • Claim Construction: Detailed comparison of accused product against each claim element.
  • • Cease & Desist Notices: Evaluating groundless threats provisions under Section 106.
  • • Pre-Institution Mediation: Complying with Section 12A of Commercial Courts Act, 2015 when urgent interim relief is not sought.
  • • Prior-Art Search: Stress-testing patent validity before entering courtroom proceedings.

Patent Enforcement & Litigation

Protect Your Patented Technology

Consult with our High Court litigation advocates in Chandigarh and New Delhi regarding patent enforcement, preliminary injunctions, or defending infringement allegations.

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