ENFORCEMENT OF PATENT RIGHTS

Table of Contents

Introduction:

In the event of patent infringement, patent owners can seek injunctions and damages through the courts. Patent owners seek interim injunctions to prevent infringing parties from carrying out acts that could be considered patent infringement. Parties frequently prepare patent claim charts in order to identify the amount of patent infringement and to further enforce patent rights.

Patent claim charts, in essence, provide in-depth analysis and drawings as to how a product (or a service) has infringed on a patent, which is often a process or product patent or even design patent in jurisdictions such as the United States. Patent claim charts illustrate the scope and extent of patent infringement by breaking down complex claim parts and terminology into illustrated charts using simple language. In general, patent claim charts break down a claim into its individual elements.[1]

Priority of Orders in Case of A Conflict:

The following are the priority of orders:[2]

National Statutory Law: In the event of a discrepancy between sources, the laws passed by the Indian Parliament or state legislatures are deemed binding and serve as the primary source. The Indian Patents Act, 1970, and the Rules promulgated under it control the patent system in India.
Judicial Pronouncements: In India, decisions are made by numerous courts, including the High Courts and the Supreme Court of India.
International Treaties: Courts are unable to apply provisions of international treaties or conventions directly. The Courts refer to domestic legislation impacted by the outcomes of these international accords. However, in exceptional cases when there is no statutory direction, the Courts may refer to international conventions and are inclined to apply them directly.

Four Dispute Judicial/Quasi-Judicial Bodies To resolve Patent Related Disputes:[3]

Indian Patent Office (IPO): Patent applications are examined by the IPO, which grants them if they comply with Indian patent laws. It also keeps track of patent renewals and how they’re being used. The IPO is involved in resolving patent grant disputes as well as post-grant oppositions. The IPO’s main administrative tasks include developing and enforcing rules and procedures.
IP Appellate Board (IPAB): The IPAB was established in April 2007 to hear patent-related disputes in the country. It hears revocation actions as well as appeals from the Controller of Patents’ judgments. IP issues are handled by the IPAB, which has technical and legal professionals on staff.
Supreme Court: It is also known as the Apex Body of the country. Appeals from the IPAB and the High Courts are heard and decided by the Supreme Court of India. Because the Supreme Court is the highest court of appeal, its decisions are final and cannot be appealed.
District Courts and High Courts: Indian district courts were the first judicial apparatus (adjudicating body) to consider patent infringement claims in the form of lawsuits. The Indian High Courts hear appeals from lower court judgements and make decisions on them.

Process Followed By IPO/Courts in Patent Infringement Matters:

Following are the points:[4]

Concerned parties are informed in advance of their judicial rights and obligations during the course of the proceedings.
When the plaintiff charges the defendant of infringement, the plaintiff bears the burden of evidence. Parties are obligated to verify and cross-examine disputed facts and evidence during the trial. If the defendant is accused of infringing on a process patent, the burden of proof is shifted to the plaintiff. The party accused of infringement, for example, is required to provide evidence of the product’s production process.
The plaintiff has three years from the date of infringement to launch a lawsuit (being the limitation period). The suit’s limitation period begins on the day of infringement, not on the date of the patent’s grant.

Special Types of Orders Passed by The Courts:

Following are the points:[5]

An Anton Pillar Order: On the plaintiff’s request or otherwise, the court may appoint a Local Commissioner to retain or seal infringing materials or accounts on the defendant’s premises.
A Mareva Injunction: The court has the power to prevent the defendant from selling its assets in India until the trial is completed or a decision in the patent infringement case is reached, or
A John Doe Order: In the case of an unknown defendant, the court might order a search and seizure with the help of the local commissioner and police, if necessary, to raid any places where infringing actions are suspected.

Time Frame:

The idea of fast-track litigation in intellectual property cases has been well received by Indian courts, particularly the High Court of Delhi. Because of the relatively low possibilities of winning an interim injunction and the limited length of exclusivity allowed under the patent regime, expedited litigation is becoming more typical in patent litigation. The full trial of an infringement suit is expected to be completed within two or three years of the institution.[6]

Strict Timelines Have Been Provided for The Following cases:

Following are the cases in which a strict timeline has been provided:[7]

Disputes must be resolved within six months after the initial case management hearing.
Written arguments must be presented within four weeks of the oral hearing, and any changed written arguments must be filed within one week of the oral hearing.
Within 90 days of the conclusion of the arguments, a decision will be rendered.
Evidence is recorded on a daily basis.
The appeals process takes six months, and lastly
There will be no adjournments due to the absence of the attending attorney.

Remedies Available:

Following are the remedies that are available:[8]

Damages: are awarded in which the infringing party is ordered to compensate the patent owners for any royalties it would have received as well as any economic losses incurred as a result of the infringement.
Injunction: an order requiring the defendant to stop infringing on the plaintiff’s intellectual property. It can be of two types:
Temporary Injunction: The court can issue a temporary restraining order against the defendant until the case is resolved or for the period specified in the court order.
Permanent Injunction: The court has the authority to make a final order prohibiting the defendant from engaging in patent infringing operations in India.

Global Practices Followed:

Following are the best global practices that are followed:[9]

Case management hearing: The Court will convene a mandatory conference with the parties to determine a timeframe for the most essential stages of the case, such as the recording of evidence and the filing of written submissions. At such case management sessions, the court is also empowered to issue a wide range of instructions to ensure that the matter is handled efficiently and effectively.
Disclosure of documents: The Commercial Courts Act lays out specific procedures for document discovery, disclosure, examination, admission, and denial. These procedures will reduce the current practice of denials of even fundamental pleadings and papers, as well as the practice of having pleadings altered at any time for no cause.
Summary Judgements: Extensive procedures have been established for the summary disposition of cases. Any party can request a summary judgement at any time before the issues are framed. The CC Act is based on natural justice principles, and it demands both parties to offer their own justifications, including documentary evidence, for why a summary judgement should or should not be granted.
Cost Issues: In the event of procedural delays in the suit, the Commercial Courts Act allows for the payment of costs against the defaulting party. The standards for determining the amount of costs owed by one party to the other have been clearly laid forth. While awarding costs to the successful party, the CC Act clearly states that “legal fees” and “fees and expenditures of witnesses” must be taken into account. As a result, the notion of real costs to be imposed on the party is introduced.

The Commercial Courts Act will force the four High Courts (Delhi, Bombay, Kolkata, and Chennai) that handle the majority of IP cases to designate benches to hear commercial matters, whether they are exercising original jurisdiction or functioning as a court of first instance. Unless the Plaintiff alters the prayer and pays the additional court expenses (about US $ 1350) to take advantage of the new procedure, existing cases that do not fall below the specified amount, which is INR 10 million (approximately US $ 147,000), will be sent to district court.

Also Read: Traditional Knowledge and IPR

Conclusion:

Patent enforcement processes are more than just about ensuring that intellectual property rights are respected. The TRIPS Agreement’s provisions are now broadly applied in national legislation across the WTO’s member nations. For intellectual property enforcement, most countries use a variety of methods and remedies. Intellectual property owners, particularly multinational corporations that invest heavily in research and development and innovation, continue to press for further government-led measures to bolster intellectual property rights protection. Developing countries, such as India, are coming under increasing pressure from industrialized countries to step up their efforts to enforce intellectual property rights. India’s enforcement record needs to improve to the point that potential inventors think the public would respect their intellectual property rights, whether voluntarily or out of fear of official enforcement. However, there are current problems that India must overcome in terms of enforcement, the most serious of which being judicial delays. The enforcement mechanism is insufficient, resulting in a long court process.[10]

It is advocated that India create a progressive court-driven IP litigation system to strengthen the enforcement and litigation system. The goal is to ensure that IP disputes can be handled in a sophisticated manner utilizing a range of procedural instruments, that legal expenses may be greatly lowered, and that disputes can be resolved in a timely manner (less than a year). Although the introduction of commercial courts is a welcome development that aims to speed up the resolution of IP issues, there is still a substantial backlog of large cases to be resolved, and complete implementation remains a difficulty. This approach can provide effective adjudication of IP disputes handled by specialists with adequate fairness and justice, regardless of the complexity or nature of the case.[11]

This article is written by Kinkini Chaudhuri, a third-year student of Amity University, Kolkata

References:

[1] RAHULDEV, https://patentbusinesslawyer.com/enforcement-of-patent-rights-in-india/#:~:text=Patent%20Infringement%20in%20India,can%20amount%20to%20patent%20infringement , (last visited May 05, 2022)

[2] LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=305df178-be4a-440d-8120-a64adc85b2bf , (last visited May 05, 2022)

[3] LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=305df178-be4a-440d-8120-a64adc85b2bf , (last visited May 05, 2022)

[4] LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=305df178-be4a-440d-8120-a64adc85b2bf , (last visited May 05, 2022)

[5] LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=305df178-be4a-440d-8120-a64adc85b2bf , (last visited May 05, 2022)

[6] IPLEADERS, https://blog.ipleaders.in/patent-enforcement/ , (last visited May 05, 2022)

[7] IPLEADERS, https://blog.ipleaders.in/patent-enforcement/ , (last visited May 05, 2022)

[8] LEXOLOGY, https://www.lexology.com/library/detail.aspx?g=305df178-be4a-440d-8120-a64adc85b2bf , (last visited May 05, 2022)

[9] IPLEADERS, https://blog.ipleaders.in/patent-enforcement/ , (last visited May 05, 2022)

[10] IPLEADERS, https://blog.ipleaders.in/patent-enforcement/ , (last visited May 05, 2022)

[11] IPLEADERS, https://blog.ipleaders.in/patent-enforcement/ , (last visited May 05, 2022)