The direct infringement of patent mcans making, or selling, something without obtaining

a proper or a valid license from the patent holder is considered direct patent
infringement. The offender is compleely liable for the act of infringement of patent.

Indirect Infringement:
The Indirect infringement of patent means the contributory infringenment and
inducement of others to infringe a patent. Here, a company can still be held accountable
for patent infringement even though a company didn't even originally infringed a patent.
Contributory Infringement:
The contributory in fringement is a type of infringement of patent which involves the
purchase or buying or importation of a part' of a product that aids or involves in making
a patented invention or a product. For proving a contributory infringement, a person
must show that the component's substantial use jwould be used to create a patented item.
" Induced Infringement:
The induccd infringement of patent occurs when a person or company jprovides
componcnts or helping to create a patcntcd product. It occurs even by offering
instructions, making plans or processes for the purpose of duplicating an existing
patented invention.

Literal Infringement:
The literal infringemcnt of patcnt is all about the direct relation berween the infringing
devicc or proccss and the patentcd devicc or process through their respective claims.

Doctrines related to Patent Infringement:

There are following are some of the doctrincs rclated to patent infringemcnt:

1. Doctrine of Equivalents
2. Doctrine of Complete Coverage
3. Doctrine of Compromise
4. Doctrine of Estoppel
5. Doctrine of Superfluity

48 PM),
2Types of Patent lnfringement: Everything you need to know, UPCOUNSEL (Dec. 08, 2019, 05:
htps://www.upcounsel.com/types-of-patent-infringement

5
 1. Doctrine of Equivalents:
The doctrine of equivalents is applied in the court of law when the device
galcete or
didn't even exactly infringe a patent, but ajudiciary might declare the order in method
the patent holder in the circumstances of when the device does
favour of
exactly the same thing
and produces the same results, it could be an
infringement.
2. Doctrine of Complete Coverage:
Ihe doctrine of complete coverage means when an
interpretation of a claim has been
made, the same interpretation must be seen in the lights
of determining the literal
infringement and infringement under the doctrine of equivalents. The owner of a
must prove by submitting the evidence in the patent
court by which it proves that the alleged
infringer has made, or sold a product or employed the
process which directly relates to
the original patented
invention.
3. Doctrine of Compromise:
The doctrine of compromise is a
principle with respect to the patent right
an invention and utility model. In the protection of
method of explaining and determining the claim of
patent right protection, there were two
representative practices in the world, one is the
limitation system represented by Germany, and the other is the
periphery limitation
system represented by England and USA.

4. Doctrine of Estoppel:
The doctrine of estoppel is a principle is
originated in the England, and has latter been
accepted into the common law in almost all the judiciaries of the world. The
doctrine of
estoppel principle in a broad sense means that, from the date of publication of a
technical statement, no different explanation is allowed to be made.
5. Doctrine of Superfluity:
The doctrine of superfluity is an establishing principle which is also referred to as
principle of excluding unnecessary technical features. The substantial meaning is that,
when explaining the patented claims and determining the patent right protection, the
doctrine omits the obvious additional technical features recorded in the patented

Types of Patent Infringement: Fverytbing you need to knon, UPCOUNSEL. (Dec. 08, 2019, 06: 00 PM),
https://www.upcounscl.com/types-of-patent-infringement
6
 independent claims, and determines the patent right protection only by the necessary and
the most important technical features.'

infringement of
following are the important sections or the provisions rclating to the
The action[ against the
legal
can move to the court to take
patents in India by which the patentee section 115 of the Indian
patents under the patents act, 1970. Sections 104 to
intringer of
concerning infringement of patents.
patents act, 1970 deals with the suits

Section 104: the

deals with the jurisdiction to file a suit concerning
act, 1970
Section 104 of the patents patent must be instituted
which states that an action for infringement of
infringement of patent suit but
or a High Court having the jurisdiction to try the
district court
by theway of suit in any defendant counter claims for the
purpose of
inferior to that. Where the transferred to the
not in the courts counter - claim will be
suit along with the
revocation of the patent, the followed in conducting a suit
for the
decision. The procedure to be A suit for
respective High Court for of the Code of Civil Procedure.
relevant provisions
infringement is governed by the
after the grant of patents.
infringement can be instituted only
for
the period of limitation for bringing a suit
Act, 1963 governs
The Indian Limitations the date of infringement. If
the patentee
is for 3 years from
infringement of a patent, which be entitled to institute
the proceedings for
patentee will not
fee, then the
didn't paid the rencwal
infringement. invention and
copying all the essential features of the
and marroW means basic featues
The doctrine of pith 'pith and Marrow'or otherwise the
referred to as taking the that the
which is sometimes pith and marrow' which means
doctrine of
Courts apply the essential features of the
ofthe invention. The theinvention or the
whether the pith and marrow of
Court is to see that

06: 30 AM),
China, LEXOLOGY (Dec. 08, 2019,
litigation in
patent infringement
https://www.lexology.com/ibrary/detail.aspx?g=1994f565-b433-47d1-adb7-5d33c21359bc
Judging principles of
06: 30 AM),
1970 (Dec. 08, 2019,
sSection 104, Patents Act, INDIAN VAKIL
Iufringement India,
https://jashvaidya.
Jash wordpress.com/2015/11/26/patent-infringement-in
Vaidya, Paent india/

7
 Sectio
105

wh

invention has been taken and if it has been done, there is an intringement of patent rights of.
invention.

Test for the infringement of Patents:

In Improver Corp. vs. Remnington Consumer Products Ltd, three tests were followed:
1. Does the new
invention have any material effect upon the way of the
then the variant or the new invention works? If yes,
invention is outside the claim. If no:
2. Would this invention have been obvious or
similar at the date of publication of the
reader skilled in the art? If no, the patent to a
invention or the variant is outside the claim. If
3. Would the reader
yes:
skilled in the respective art
of the claim of the nevertheless have
invention that the patentee intended that understood from the language
meaning was an essential need of the strict relation with the primary
outside the claim. invention? If yes, the variant or the new
invention is
This is a landmark case which is
considered by the courts for
determining
infringement of a patented invention. The above the test for the
are considered for the primary reasons or the
mentioned conditions in that respective case
conditions for the
evidences produced in the court of law.infringement based the
similar questions or the related on

Section 104A of the

Patents Act, 1970 deals with the
burden of proof in case of suits
concerning infringement which states that the court has the
prove that the process used by the power to direct the defendant to
defendant to obtain the product, identical to the product of
the patented process, is different from
the patented product or process.
In FDC Limited, Chennai vs. Sanjeev Khandelwal Prem
Niwas, it was held that if the
defendant contends that his process is different of the
plaintiff, the burden is on the defendant
to prove the fact, because the process
employed by the defendant being within the special
knowledge of the defendant, under section 101 of the Indian
Evidence Act, the burden of
proving the process employed by the defendant is rested on the defendant. 10

7A. Chandrasekaran, Intellectual Property Law, C.

SITARAMAN & C0. PVT. LTD, 249, Third Edition (2013)
SImprover Corp. Vs. Remington Consumer Products Ltd, (1990) FSR 181 at 189
9 Section 104A, Patents Act, 1970
1OFDC Limited, Chennai Vs. Sanjeev Khandelwal Prem Niwas, (2007) 5 MLJ 971
Section 105 deals with the power of court to make declaration as to non-infringement,
which states that there are few essential conditions under which the court can consider for
making declarations as to non-infringement, they are,
(a) that the plaintiff has made in writing to the original patent holder or to the exclusive licensee
the
for a' written acknowledgements to the effect of the declaration claimed and has furnished
person with full particulars in writing of the process or article in question; and

give such an acknowledgement

(b) that the original patent holder or the licensee has refused to
or the permission."
Madhu Silica Pvt Ltd, the court finds that the
In Bharatbhai Padmakant Raut & vs.
the respondent No.1 company for the
petitioner No.1 had illegally transferred the secret data of
there is no
silica. Therefore, it cannot be said that
purpose of manufacturing highly dispersible 104 of
disclosed for filing the suit. Therefore the suit came to an end by Section
cause of action
provides for
the Section 104 of the Patent Act, 1970
the Act, and also it is required to note that
for declaration under the Section
105 or for any relief
the institution of the suit
bar against
inferior Court or a
infringement of a patent before any of the
under the Section 106 or for
the suit.2
District Court having jurisdiction to try
relief in cases
with the power of the court to grant
Section 106 of thePatent Act, 1970 deals
where any person
infringement proceedings and it states that,
of groundless threats of or in
commercials, communications, or by circulars or oral form
threatens any other person by
any other person, with proceedings for infringement of a patent, and
writing addressed to that or for the
aggrieved thercby may bring a suit against the person praying
if any such person
following reliefs, that is to say
threats arc unjustifiabl;
(a) a declaration that the
the threats; and
relating to patent against the continuance of
(b) an injunction
a person has sustaincd thereby.
(c) such damages, if any, reading
court observed that
Micromax Informnatics Limited, the
vs.
In S. Ram Kumar defendant is rather called upon
to prove
1970 shows that a
Patents Act,
of Section 106 of the

1970
1Section 105, Patents Act, C/SCA/15331/2017
Vs. MadhuSilica Pvt Ltd,
12Bharatbhai Padmakant Raut &
1970
13Section 106, Patcnts Act,
that his act wouldnot amount to an infringement in respect of a claim of the specifications not
shown by the plaintiff to be invalid. Thus, the impugned order has to be examined in the light of
the provisions of Sections 105 and 106 of the Patents Act 1970 and as such, no fault can be
tound with the impugned order for having discussed the patent in order to discuss whether the
Same amounts to infringement or not for the reasons that the protection is already provided
under Section 105 of the Patents Act, 1970

Section 107 deals with the defences in a suit for infringement which deals with the defences
which are available to the defendant against the plaintiff in a suit for infringement.
Section 107 of
the patents act, 1970 is a legal instrument used by the defendant in solving the
suit for
infringement the court of law. Section 107 states that in any suit for
in
infringement of a patent
may be revoked under section 64 shall be available as a ground for
defence and also it states that
in any suit for infringement of a patent by the making, using or importation of any machine,
apparatus of other article or by the using of any process or by the
importation, use or
distribution or any drug or medicines and it shall be a ground for defence.
In Galatea Ltd vs. Diyora And Bhanderi
Corporation, the defendants have preferred a
counter claim and sought the revocation of the plaintiffs" patent. At
this juncture, it was also be
pertinent to note Section 107 of the Patents Act, 1970, which relates to
defences, etc., in suits
for infringement.
Section 107A deals with certain acts not to be considered as
infringement which states that
for the purposes of this Act,
(a) any act of making, or constructing, or using, or selling or importing a
patented invention only
for the purpose of development and submission of information required under any law in India,
or in a country other than India, which regulates the manufacture, or
construction, or use, sale or
import of any product or an invention;

(b) Importing or buying of any patented invention by any person from a person who is properly
authorised under the law to produce and sell or distribute the patented product, shall not be
considered as infringement of patent rights of an invention."

14S. Ram Kumar Vs Micromax Informatics Limited, FAO No.2757 of 2009

15Section 107, Patents Act, 1970
16Galatea Ltd Vs Diyora And Bhanderi Corporation, C/CS/2/2017
17Section 107A, Patents Act, 1970

10
In Bayer Corporation vs. Union Of In dia, the Delhi High court notices that Section 107A is
not made subject to the other provisions of the Act -on the other hand, Section 48, which talks
of the rights of a patent holder is subject to other provisions of the Act that includes Section
107A.18

Rights of Licensee to take patent infringement proceedings:

Section 109 deals with the right of exclusive licensee to take proceedings against
infringement and it states that the holder of an exclusive licence shall have the patent rights like
the patentee to institute asuit in respect of any infringement of the patent committed after giving
the licence and in awarding damages or an account of profits or granting any other relief in any
such suit the court shall take into consideration of any loss suffered or likely to be suffered by
the cxclusive licensee.

The Section 109 of the patents act, 1970 empowers the licensee of a patent to have the same
rights of a patent holder to take the proceedings against the infringement. It states that in
any suit for infringement of a patent by the holder of an exclusive licence, the patentee shal,
unless he has joined as a plainiff in the suit, the patentee shall be added as a defendant, but in
any case a patentee so added as defendant shall not be liable for any costs unless he enters an
appearance and takes part in the proceedings as per the law.

In Laila Nutraceuticals vs. Vittal Malya Scientific Research, the Bangalore district court
held that the Arbitrator has failed to note that Section 109 of the Patents Act, 1970 can be
invoked only when the License Agreement is registered with the patent office. The statutory
right of a license is available only when the agreement is registered with the patent office. If there
is no cntry in the register, based on an unregistered agrcement, the Plainiff is not able to file any
suit against the infringer.20

18Bayer Corporation vs. Union Of India, FAO (OS) (COMM) 169/2017

19Section 109, Patents Act, 1970
20 Laila Nutraceuticals vs. Vittal Malya Scicntific Rescarch, AS.74/2013

11