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    IPR Litigation Content No 4 by MR Deep Narayan

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    rahul matharu
    The document outlines several defenses that are available in patent infringement litigation in India: 1) Challenges to the title of the claimant or grounds to revoke the validity of the patent. 2) The "Gillette defense" which argues the act was merely what was disclosed in prior art without substantial variation. 3) The "Bolar exemption" which allows using the patent solely for regulatory purposes.

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    IPR Litigation Content No 4 by MR Deep Narayan

    Uploaded by

    rahul matharu
    28 views4 pages
    The document outlines several defenses that are available in patent infringement litigation in India: 1) Challenges to the title of the claimant or grounds to revoke the validity of the patent. 2) The "Gillette defense" which argues the act was merely what was disclosed in prior art without substantial variation. 3) The "Bolar exemption" which allows using the patent solely for regulatory purposes.

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    IPR Litigation Content No 4 by Mr Deep Narayan

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    The document outlines several defenses that are available in patent infringement litigation in India: 1) Challenges to the title of the claimant or grounds to revoke the validity of the patent. 2) The "Gillette defense" which argues the act was merely what was disclosed in prior art without substantial variation. 3) The "Bolar exemption" which allows using the patent solely for regulatory purposes.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    28 views4 pages

    IPR Litigation Content No 4 by MR Deep Narayan

    Uploaded by

    rahul matharu
    The document outlines several defenses that are available in patent infringement litigation in India: 1) Challenges to the title of the claimant or grounds to revoke the validity of the patent. 2) The "Gillette defense" which argues the act was merely what was disclosed in prior art without substantial variation. 3) The "Bolar exemption" which allows using the patent solely for regulatory purposes.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 4

    IPR LITIGATION 4

    • The following defences are available :


    • Challenges to the title of the claimant. Defendants can argue that the
    claimant is not entitled to sue for infringement due to reasons such as
    defective title.
    • Grounds for revocation. All the grounds available to challenge the validity
    of a patent are available as grounds for defending an infringement action
    (see Question 9).
    • "Gillette" defence. Indian courts recognise the Gillette defence as a valid
    defence in an infringement action. The defendant can prove that the act
    complained of was merely what was disclosed in a prior publication (which
    can also be relied on against the validity of the patent), without any
    substantial or patentable variation made (Hindusthan Lever Ltd v Godrej
    Soaps Ltd [1996] AIR Cal 367; Raviraj Gupta v Acme Glass Mosaic
    Industries (1994) 56 DLT 673). Therefore, either the defendant does not
    infringe or the patent is invalid, if the patent covers prior art.
    • Bolar exemption. India recognises the concept of Bolar exemption and borrows from Bolar
    provisions under US law. Under section 107A (a) of the Patents Act 1970 the act of making,
    constructing, using, selling, or importing a patented invention solely for uses related to the
    development and submission of information required under any law in force in India will not
    amount to infringement. In Bayer Corporation & Anr. v Union of India & Ors., 2010 (43) PTC 12
    (Del), the Division Bench of the Delhi High Court held that a patent owner cannot seek to prevent
    the Drug Controller General of India from processing applications for licences to manufacture
    and/or market a generic version of a patented drug (generally referred to as "patent linkage").

    • Parallel import. The import of a patented product by any person duly authorised under the law to
    produce and sell or distribute this product is not considered to be an infringement.

    • Patent applications made before 1 January 2005. Enterprises that have made significant
    investments and were producing and marketing the product covered by a patent application under
    the old Patent Act (before 1 January 2005) will continue to manufacture the product even after the
    grant of a patent. No infringement proceeding can be instituted against these enterprises. A patent
    holder can only be entitled to receive a reasonable royalty from the enterprises. This provision is
    applicable until the patent applications that were made before 1 January 2005 are disposed of by
    the Patent Office.
    • .
    • Innocent infringement. Although the fact that the
    defendant was an innocent infringer is not a factor for
    determining liability, it plays a role in determining whether
    an account of profits and damages should be granted in
    favour of the claimant. The Patents Act 1970 expressly
    states that damages or accounts of profits will not be
    granted against a defendant that proves that he/she was
    not aware and did not have reasonable grounds to believe
    that the patent existed at the date of the infringement.
    • Experimental use. Any uses of a patented invention for the
    sole purposes of experimentation or carrying on research,
    including for educational purposes, are not considered as
    acts of infringement.

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