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Navigating Patent Infringements in India: A Guide for Intellectual Property Protection

By - King Stubb & Kasiva on June 22, 2023

Patents hold significant value as a form of Intellectual Property (IP), providing exclusive rights to inventors for a specified period. King Stubb and Kasiva (KSK) is known for its one of the best and most experienced Intellectual property lawyers in India. Ideas, brands, innovations, and products are all Intellectual Property assets that face threats of infringement owing to the market competitiveness and ill intentions of the infringers. KSK understands these challenges and our experienced intellectual property lawyers offer a wide range of services in order to protect these Intellectual Property Rights.

In India, the duration of a patent is generally 20 years from the priority date of the application. These rights empower patent holders to prohibit third parties from manufacturing, using, selling, offering for sale, and importing the patented product or the product created through a patented process within the jurisdiction. Patents confer an exclusive monopoly, which modern business owners utilize to optimize the commercialization of their intellectual inventions. The patent law grants patentees the authority to prevent others from making, using, selling, offering for sale, or importing their patented invention without their consent. In cases of infringement, the patentee is entitled to seek relief, including injunctions, damages, or an account of profits.

However, certain acts performed by third parties, such as making, using, selling, or importing a patented invention, do not constitute infringement even without the patentee's consent. An example of such an exemption is Section 107(A) of the Patent Law[1], commonly known as the 'Bolar provision' or 'Bolar exemption.' This provision serves as a safeguard against patent infringement, particularly in the context of pharmaceutical drugs.

In the landmark case of US Roche Products v Bolar Pharmaceuticals[2], it was initially determined that Bolar's use of the patented compound for federally mandated testing constituted infringement. However, subsequent to this judgment, the US Congress overturned it by enacting a law that permitted the use of patented inventions in research aimed at seeking Food and Drug Administration approval.

Patent Infringement:

Patent infringement refers to the violation of a patentee's rights pertaining to an invention. It occurs when a third party, without the patent holder's consent or license, violates the patent holder's rights or claims stated in the patent. Conducting a patent infringement risk analysis is crucial to ensure that an invention does not infringe upon existing patent rights.

Types Of Patent Infringement:

A. Direct Infringement:

Direct infringement is the most evident and common type of infringement. It entails the marketing, sale, or commercial use of a similar patented item or invention that performs substantially identical functions. There are two forms of direct infringement:

  1. Literal Infringement: Literal infringement occurs when every component mentioned in the patent specification is utilized in the alleged infringing product, device, or process. An example of a literal infringement is the case of Polaroid Corp v. Eastman Kodak Co.,[3] where Eastman Kodak's infringement of Polaroid's "Instant camera technology" was considered a case of literal infringement.
  2. Doctrine of Equivalence: This form of infringement, also known as nonliteral infringement, occurs when the accused device or process is similar or equivalent to the claimed invention, performing substantially the same function, in substantially the same way, and achieving substantially the same result. The doctrine of equivalence provides additional and fair protection for patentees. The Indian legal system recently adopted this doctrine in the case of Ravi Kamal Bali v. Kala Tech[4].

In this case, it was alleged that the defendants infringed upon a patent for a tamper-proof lock/seal for containers. The defense claimed that the product differed from the patented product in material particulars. However, the court found the changes to be inconsequential and applied the doctrine of equivalence.

B. Indirect Infringement:

Indirect infringement occurs when the infringement is facilitated by someone else. There are two types of indirect infringement:

  1. Induced Infringement: Induced infringement occurs when one actively encourages, assists, aids, or induces another person to infringe a patent. It implies that the inducer willingly and knowingly played a role in the infringement, although their specific intent to violate a patent may or may not be established.
  2. Contributory Infringement: Contributory infringement is a type of indirect infringement where one party intentionally participates or assists in an act of infringement committed by another party, making them vicariously liable for the infringer's actions. It occurs when a party sells a product that they know will be used in an infringing product. Typically, this product has no commercial value outside of its use in the infringing product. In contributory infringement, the liable party provides a part or component that, although not infringing any patent itself, serves a specific purpose as part of another machine or composition that is covered by a patent.
  3. Wilful Infringement: Wilful infringement is another type of infringement that involves a deliberate and serious disregard for the existence of a patent. For instance, if you file a lawsuit against Acme for infringing on your anvil patent and discover during the legal process that they possessed and used your patented technology to manufacture their anvils, you are likely to successfully demonstrate that their infringement was willful. Those found guilty of wilful infringement face higher penalties, including increased fines, attorney fees, and court costs.


Safeguarding intellectual property, particularly patents, is of paramount importance. Patent infringement represents a violation of the rights held by patentees, and it necessitates distinct defense strategies depending on the type of infringement involved. In this regard, King Stubb and Kasiva provide comprehensive patent legal services, offering expertise and guidance to patentees in understanding and defending against infringement. With our experienced team of patent attorneys, KSK can assist in formulating robust defense mechanisms and protecting valuable intellectual property, ensuring the smooth functioning of business operations and the preservation of patent rights.


What are the potential consequences of patent infringement?

Patent infringement can lead to various consequences for the infringing party. These may include legal action taken by the patent holder, resulting in injunctions, monetary damages, or an account of profits. Additionally, the infringing party may be required to cease the infringing activities, modify their products or processes, or even face higher penalties and legal costs if the infringement is deemed willful.

How can a patent holder defend against different types of patent infringement?

Defending against patent infringement requires careful analysis and appropriate legal strategies. In cases of direct infringement, the patent holder can present evidence to prove that the accused product or process falls within the scope of their patent claims, establishing literal infringement. For non-literal infringement, such as the doctrine of equivalence, the patent holder must demonstrate that the accused device or process performs substantially the same function, in substantially the same way, and achieves substantially the same result as their patented invention. In cases of contributory infringement, the patent holder can show that the party knowingly supplied a component or part used in an infringing product. Seeking legal counsel and presenting strong evidence are essential for a successful defense.

What are the potential benefits of patent protection?

Patent protection offers several benefits to inventors and businesses. By granting exclusive rights, patents allow inventors to prevent others from making, using, selling, or importing their patented invention without permission. This exclusivity provides inventors with a competitive advantage and the opportunity to commercialize their inventions, potentially leading to increased market share, higher profits, and a stronger position in the industry. Patents also encourage innovation by rewarding inventors for their contributions and providing an incentive for further research and development. Additionally, patents can be valuable assets that can be licensed, sold, or used as collateral for securing financing.

[1]The Patent Act,1970, S.107A<>as accessed on 16th June 2023.

[2]Roche Products v. Bolar Pharmaceuticals Co., 733 F 2d 858 (1984).

[3]Polaroid Corp. v. Eastman Kodak Co., 641 F. Supp. 828 (D. Mass. 1986).

[4]Ravi Kamal Bali v. Kala Tech, 2008 SCC OnLine Bom 496

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