Patent Infringement occurs when any person, without the authority or licence of the patent holder, makes, uses, offers for sale, sells, or imports the patented invention in India, thereby violating the exclusive rights conferred by the patent. Under Indian law, the rights of a patentee are defined in Section 48 of the Patents Act, 1970, and suits for infringement are governed by Sections 104-115 of the Act.
Legal definition
The Patents Act, 1970 defines the patentee's exclusive rights and the infringement framework:
Section 48: Subject to the other provisions of this Act, a patent granted under this Act shall confer upon the patentee — (a) where the subject matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India; (b) where the subject matter of the patent is a process, the exclusive right to prevent third parties from using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India.
Section 104: No suit for a declaration that any use made of a process by any person does not constitute an infringement or for any relief against infringement of a patent shall be instituted in any court inferior to a District Court.
Burden of proof: Under Section 104A, in suits concerning infringement of a process patent for a new product, the court may direct the defendant to prove that the process used by the defendant to obtain the identical product is different from the patented process, reversing the normal burden of proof.
Section 107: The Act provides several defences to infringement, including that the defendant's use was for experimental or research purposes (Section 107A), that the invention was independently developed, or that the patent is invalid.
How courts have interpreted this term
Aloys Wobben v. Yogesh Mehra [(2014) 15 SCC 360]
The Supreme Court held that a defendant in a patent infringement suit can challenge the validity of the patent as a defence, but must choose between the remedies available — revocation by counterclaim under Section 64 or opposition proceedings. The Court established that patent claims must be construed purposively, not literally, and that the specification and claims read together define the scope of the patent and the boundary within which infringement is assessed.
F. Hoffmann-La Roche v. Cipla Ltd. [2016 (65) PTC 1 (Del)]
The Delhi High Court held that in determining patent infringement, the court must construe the claims of the patent specification to determine their scope and then compare the alleged infringing product or process with the claims. The Court applied the "pith and marrow" doctrine, holding that infringement occurs not only when every element of the claim is replicated exactly but also when the essential elements are taken and immaterial variations are made.
Monsanto Technology LLC v. Nuziveedu Seeds Ltd. [(2019) 3 SCC 381]
The Supreme Court addressed the interplay between patent rights and other IP regimes, holding that a patent for a genetically modified gene sequence (Bt cotton technology) is subject to the provisions of the Protection of Plant Varieties and Farmers' Rights Act, 2001. The Court observed that the patent holder's rights under Section 48 must be read harmoniously with the statutory protections available to farmers and breeders under other legislation.
Types of patent infringement
- Literal infringement: The infringing product or process falls squarely within the language of the patent claims — every element of the claim is present in the accused product or process
- Infringement under the doctrine of equivalents: The infringing product or process performs substantially the same function, in substantially the same way, to achieve substantially the same result as the patented invention, even if it does not literally fall within the claim language
- Contributory infringement: Not expressly recognised under Indian law, but courts have considered whether supplying essential components of a patented invention with knowledge of their intended infringing use may attract liability
- Indirect infringement: Inducing or aiding another person to commit acts of infringement
Why this matters
Patent infringement litigation in India has grown significantly since the 2005 amendments brought India's patent regime into TRIPS compliance. The pharmaceutical sector, in particular, has seen numerous high-value disputes between multinational patent holders and Indian generic manufacturers.
For patent holders, the remedies available in an infringement suit include injunction (both interim and permanent), damages or an account of profits, and delivery up of infringing goods. The choice between damages and account of profits is an election — the patentee cannot claim both.
For alleged infringers, the Patents Act provides robust defences. Section 107A establishes the "Bolar exception," permitting the use of a patented invention for purposes related to development and submission of information required under any law (enabling generic manufacturers to prepare for market entry before patent expiry). Section 107(1) allows the defendant to raise any ground for revocation under Section 64 as a defence to the infringement claim.
Related terms
Parent concept:
Related IP concepts:
Frequently asked questions
Which court has jurisdiction over patent infringement suits?
Under Section 104, patent infringement suits must be filed in a court not inferior to a District Court. If a counterclaim for revocation is filed by the defendant, the suit must be transferred to the High Court. In practice, most significant patent infringement suits are filed directly in the High Courts with original jurisdiction (Delhi, Bombay, Calcutta, Madras).
What is the limitation period for filing a patent infringement suit?
Under the Limitation Act, 1963, a suit for patent infringement must be filed within three years from the date of the infringing act. However, damages can only be claimed for infringement that occurred within three years prior to the filing of the suit.
Can a process patent be infringed by a different process that produces the same product?
No. Infringement of a process patent requires the use of the specific patented process, not merely the production of the same product. However, under Section 104A, if the product is new, the burden shifts to the defendant to prove that the process used is different from the patented process.
This entry is part of the Veritect Indian Legal Glossary, a comprehensive reference of Indian legal terminology grounded in statutory text and judicial interpretation.
Last updated: 2026-03-27. Veritect provides this content for informational purposes and does not constitute legal advice.