India: Patent Litigation

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding patent litigation law in India.

This Q&A is part of the global guide to Patent Litigation.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/patent-litigation/

  1. What is the forum for the conduct of patent litigation?

    a) The hierarchy of Courts in India entails, the following Courts:

    -The Supreme Court of India being the Apex Court, which exercises original and appellate jurisdiction over the entire territory of India.
    - High Courts at state level which are at the top of the judiciary for each of the States.
    - The District Courts are courts of original jurisdiction. A District Court also includes the City Civil Court, and the Courts of Additional District Judge, Joint District Judge, Assistant District Judge, and the CJ of the Small Causes Court.

    b) As per Section 104 of the Indian Patents Act, 1970 no suit for declaration as to non-infringement or for any relief under Section 106 (for groundless legal threats) or for infringement of a patent shall be instituted in any court inferior to the District Court having jurisdiction to try the suit.

    c) The District Court having jurisdiction means the court where the Defendant voluntarily resides or carries on business, and where there are more than one Defendant, where at least one of them at the time of commencement of the suit voluntarily resides or carries on business, or where the cause of action arose. There are some High Courts which exercise ordinary original jurisdiction and have powers to entertain suits relating to patent infringement. However, where a counterclaim for revocation of a patent is made by the Defendant, the suit, along with the counterclaim, where pending before a District Court, shall be transferred to the High Court for decision as per the proviso to Section 104 of the Patents Act, 1970.

    d) The Delhi High Court is particularly favorable and has an Intellectual Property savvy bench. Some of the Judges even have a technical background.

  2. What is the typical timeline and form of first instance patent litigation proceedings?

    In India, there is currently no bifurcation regarding infringement and invalidity proceedings in a Patent litigation suit. While, validity of a Patent can only be challenged through a Counter-claim in a suit and such Counter-claim is considered a separate law-suit, both the suit and counter-claim are heard and disposed of together. Evidence is led by the Plaintiff first on all the issues, followed by the Defendant. All issues are thereafter argued by the parties in the same order.

  3. Can interim and final decisions in patent cases be appealed?

    a) Yes, an appeal lies against an interim as well as the final decision. An appeal will lie to the High Court Single Judge Bench from an order of the District Court and has to be filed within 90 days. Thereafter an appeal lies to the Supreme Court of India within 90 days.

    b) Where the Patent suit is filed at the original side of the High Court, an appeal will lie to the Division Bench of the High Court and has to be filed within 60 days, comprising of two Judges and thereafter an appeal lies to the Supreme Court of India within 90 days.

    c) As regards an appeal to the Supreme Court, a Special leave to appeal may be filed to by the Supreme Court by virtue of which the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

  4. Which acts constitute direct patent infringement?

    Infringement of a patent means infringement of the exclusive rights granted by the patent. Under Section 48 of the Patents Act, 1970 the patentee has the exclusive right to prevent any third party, without his consent, from making, using, offering for sale, selling, or importing for those purposes the patented product; or in case of a process patent, the exclusive rights to prevent any third party from using that process and from using, offering for sale, selling, or importing the product obtained directly by the patented process.

  5. Do the concepts of indirect patent infringement or contributory infringement exist? If, so what are the elements of such forms of infringement?

    The Patents Act, 1970 does not specifically provide for contributory/indirect infringement and/or Divided Infringement.

  6. How is the scope of protection of patent claims construed?

    Yes, Doctrine of Equivalents has been recognized in India.

  7. What are the key defences to patent infringement?

    1. UnderSection 107 of the Patents Act, 1970, in any suit for infringement of a patent, every ground on which it may be revoked will be available as a ground for defense.
    2. Under Section 107A of the Patents Act, 1970, certain acts are not to be considered as infringement being:
      • That the making, using, constructing, selling, or importing of the patented invention is solely for uses related to the development and submission of information required by any law for the time being in force in India or any other country that regulates such use;
      • That the Defendant’s importation from a person is duly authorized to manufacture, distribute, or sell;

    3. The following defenses, are also available:
      • That the Defendant’s product is different from the Plaintiff’s patented invention, amongst others;
      • Gillette Defense- In an infringement action, the Defendant may raise as a defence that his product is based on the claims of a prior patent which is now in public domain.
  8. What are the key grounds of patent invalidity?

    Section 64 of the Patents Act, 1970, provides the following grounds of patent invalidity:
    a) The invention so far claimed in any claim of the complete specification has been claimed in a valid claim of earlier priority date of another patent granted in India;
    b) The person who claims to be a patentee is not entitled to the claim under law;
    c) The patent was obtained wrongfully in contravention of his rights of a third party;
    d) The subject matter of any claim is not an invention;
    e) The invention is not new or novel;
    f) The invention so far as claimed in any claim of the complete specification is obvious and does not involve any inventive step;
    g) The invention is not useful;
    h) The complete specification does not completely and fairly describe the invention and the method by which it is to be performed;
    i) The scope of any claim of any complete specification is not clearly and sufficiently defined;
    j) The patent was obtained on a false suggestion or representation;
    k) The subject matter is not patentable under the Act;
    l) The invention so far as claimed was secretly used in India before the priority date;
    m) The patentee has suppressed material information or has furnished information which in any material particular was false;
    n) The Patentee has contravened the secrecy provision provided under Section 35 of the Patents Act, 1970;
    o) That leave to amend the complete specification was obtained by fraud;
    p) That the complete specification wrongly mentions or does not disclose the geographical origin of biological material used for the invention; or
    q) That the invention so far as claimed was anticipated with regard to knowledge, oral or otherwise, available within any local or indigenous community in India or elsewhere.

  9. How is prior art considered in the context of an invalidity action?

    For the ground of anticipation to succeed, it is essential that all the claim elements or limitations must be found in a single prior art document. Farbwerke Hoechst Aktiengesellschaft vormals Meister Lucius & Bruning a Corporation etc. v. Unichem Corporation, AIR 1969 Bombay 255.

    On the aspect of obviousness, the Division Bench in F. Hoffmann La Roche vs. Cipla, RFA (OS) No. 103 of 2012 vide order dated 8th December 2015, held that following inquiries are required to be conducted:

    • To identify an ordinary person skilled in the art,
    • To identify the inventive concept embodied in the patent,
    • To impute to a normal skilled but unimaginative ordinary person skilled in the art what was common general knowledge in the art at the priority date.
    • To identify the differences, if any, between the matter cited and the alleged invention and ascertain whether the differences are ordinary application of law or involve various different steps requiring multiple, theoretical and practical applications,
    • To decide whether those differences, viewed in the knowledge of alleged invention, constituted steps which would have been obvious to the ordinary person skilled in the art and rule out a hindsight approach.
    • In an obviousness enquiry, hindsight is impermissible.
  10. Can a patentee seek to amend a patent that is in the midst of patent litigation?

    Yes. An amendment of patent may be done in the following manner:

    a) Before the Controller

    As per Section 57 of the Patents Act, 1970, subject to the provisions of section 59, the Controller may, upon application made under this section in the prescribed manner by an applicant for a patent or by a patentee, allow the application for the patent or the complete specification [or any document related thereto] to be amended subject to such conditions, if any, as the Controller thinks fit: Provided that the Controller shall not pass any order allowing or refusing an application to amend an application for a patent or a specification [or any document related thereto] under this section while any suit before a court for the infringement of the patent or any proceeding before the High Court for the revocation of the patent is pending, whether the suit or proceeding commenced before or after the filing of the application to amend.

    The application shall state the nature of the proposed amendment, and shall give full particulars of the reasons for which the application is made. Such application may be published and any person interested may, within the prescribed period after the publication thereof, give notice to the Controller of opposition thereto; and where such a notice is given within the period aforesaid, the Controller shall notify the person by whom the application under this section is made and shall give to that person and to the opponent an opportunity to be heard before he decides the case.

    b) Before the Appellate Board or the High Court

    Under Section 58 of the Patents Act, 1970 in any proceeding before the Appellate Board or the High Court for the revocation of a patent, the appellate board or the High Court may allow the patentee to amend his complete specification in such manner and subject to such terms as to costs, advertisement or otherwise as the appellate board or the High Court may deem fit. If in any proceeding for revocation, the Appellate Board or the High Court decides that the patent is invalid, it may allow the specification to be amended instead of revoking the patent. Where an application for such order is made to the Appellate Board or the High Court, the applicant may give notice of the application to the Controller, and the Controller will be entitled to appear and be heard and shall appear, if so directed by the Appellate Board or the High Court. Copies of all orders of the Appellate Board or the High Court allowing the patentee to amend the specification must be transmitted by the Appellate Board or the High Court to the Controller who will enter the same in the register.

    c) Scope of amendments before the Controller, the Appellate Board and the High Court

    Under Section 59(1) of the Patents Act, 1970 no amendment of an application for a patent or a complete specification or any document related thereto shall be made except by way of disclaimer, correction or explanation, and no amendment thereof shall be allowed, except for the purpose of incorporation of actual fact, and no amendment of a complete specification shall be allowed, the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed or shown in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.

  11. Is some form of patent term extension available?

    No

  12. How are technical matters considered in patent litigation proceedings?

    a) Expert witness - As per Section 45 of the Indian Evidence Act, 1872, expert witnesses may be summoned under the procedure code to establish any particular fact in a trial. When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons especially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. In highly technical matters the Court has to go by the opinion of the experts in the field, whose testimony is found trustworthy and reliable and supported by documents.

    b) Scientific Advisers - Under Section 115 of the Patents Act, 1970, the court, in any suit for infringement of a patent or in any other proceeding relating to a patent may at any time, regardless of whether an application is made in that regard or not, appoint an independent scientific adviser to assist the court or to inquire into any question of fact or of opinion as it may formulate for the purpose. The Controller of Patents is also required to maintain a roll of scientific advisers for the above purpose. Any person may be entered in the roll of scientific advisers provided he holds a degree in science, engineering, or technology or equivalent; has at least fifteen years of practical or research experience; and holds or has held a responsible post in state or central government. (Rule 103, Patents Rules of 2003)

    c) Hot-Tubbing - Recently, the concept of Hot-Tubbing has been introduced in Chapter XI Rule 6 of the Delhi High Court Rules, 2018 and guidelines for the same have been provided in Annexure G of the Rules. ‘Hot-tubbing’ is a technique in which expert witnesses give evidence simultaneously in each other’s presence and in front of the Judge, who puts the same question to each expert witnesses. It is a co-operative endeavour to identify key issues of a dispute and where possible evolve a common resolution for all of them. However, where resolution of issues is not possible, a structured discussion, allows the experts to give their opinions without the constraints of the adversarial process and in a setting which enables them to respond directly to each other. The Judge is thereby not confined to the opinion of only one expert but has the benefit of multiple experts who are rigorously examined in public.

  13. Is some form of discovery/disclosure and/or court-mandated evidence seizure/protection (e.g. saisie-contrefaçon) available, either before the commencement of or during patent litigation proceedings?

    There are various mechanisms available for disclosure/discovery and seizure regarding the infringer’s products, documents, books of accounts, premises etc., as below:

    a) Search Orders/ Anton Piller Orders –under XXVI, Rule 9, Civil Procedure Code 1908 the Court has the power, on an application by the Plaintiff, to appoint an advocate commissioner to go to the Defendant’s place and search the Defendant’s premises and if any infringing material is found in the premises, the Court may also direct the commissioner to seize the infringing material and produce it in Court. The seized goods may also be directed to be stored in the Defendant’s premises until further orders. The Advocate Commissioner so appointed is required to submit a report on the execution of the commission. The purpose of such orders is to enable the recovery of infringing articles and other evidence of infringement before it can be destroyed or concealed and are usually granted ex parte.

    b) Discovery of documents-the Civil Procedure Code provides for discovery and inspection of documents. Under Order XI (1)(6) of the Code of Civil Procedure, 1908, in any suit, the Plaintiff shall set out details of documents which the Plaintiff believes to be in the power, control or possession of the Defendant and which the Defendant wishes to rely upon and seek production thereof by the said Defendant.

    c) Discovery by interrogatories- under Order XI (2) of the Code of Civil Procedure, 1908, the Plaintiff or Defendant by leave of the Court may deliver one set of interrogatories in writing for the examination of the opposite parties. Where any party to a suit is a corporation or a body of persons, the interrogatories may be submitted to any member of the corporation or body of persons. All interrogatories are to be answered within ten days by way of an affidavit.

    d) Inspection- under Order XI (3) of the Code of Civil Procedure, 1908, any party may seek direction from the Court, at any stage of the proceedings, for inspection or production of documents by the other party.

  14. Are there procedures available which would assist a patentee to determine infringement of a process patent?

    As per Section 104A of the Patents Act, 1970, in a suit for infringement of a process patent, the court may direct the defendant to prove that the process used by him to obtain the product is different from the patented process if:

    a) The subject matter of the patent is a process for obtaining a new product, or

    b) The patentee or a person deriving title from him is unable through reasonable efforts to determine the process used by the defendant, where the product directly made by the patented process is identical to that of the product obtained by the patented process.

    However, the Act requires that the patentee or the person deriving title or interest in the patent first prove that the defendant’s product is obtained by the patented process.

    The aforementioned tools of Search/Discovery/Interrogatories etc. may be useful to seek information which is within power, control, knowledge or possession of the infringer.

  15. Are there established mechanisms to protect confidential information required to be disclosed/exchanged in the course of patent litigation (e.g. confidentiality clubs)?

    There are following mechanisms through which confidential information required to be disclosed/exchanged in the course of litigation proceedings including patent litigation, as enumerated below:

    • Confidentiality Club: While Courts in India, have allowed setting up of a 'confidentiality club' in the past, of particular significance is the recent order dated 24th October 2017 in Telefonaktiebolaget Lm ... vs Xiaomi Technology & Ors. The Court while referring to Section 103 of the Patents Act, 1970 which states that “..103 (3) If in such proceedings as aforesaid any question arises whether an invention has been recorded, tested or tried as is mentioned in section 100, and the disclosure of any document regarding the invention, or of any evidence of the test or trial thereof, would, in the opinion of the Central Government, be prejudicial to the public interest, the disclosure may be made confidentially to the advocate of the other party or to an independent expert mutually agreed upon”, has stated that the said section contemplates a situation where the disclosure of any document regarding the invention may be made confidentially only to an advocate or to an independent expert mutually agreed upon. The Court further laid down a procedure which may be adopted for establishing a confidential club, which broadly allowed access to confidential documents to not more than five lawyers (who are not and have not been in-house lawyers of one of the parties) and no more than three external expert witnesses. The documents would otherwise be filed in sealed cover and deposited with the Registrar General;

    Thereafter, the same was introduced in Chapter VII rule XVII of the Delhi High Court Rules, 2018. Annexure F of the Delhi High Court Rules, 2018 lays down the detailed procedure for establishment of confidentiality clubs.

    • In camera proceedings: Where an applicant desires that he be heard in Camera for the purpose of passing an ex-parte interim order, he shall file an application stating reasons thereof and the same is provided under Chapter X rule II of the Delhi High Court Rules, 2018.
    • Sealed cover- One may even file an application before Court to have the confidential documents filed under sealed cover.
  16. Is there a system of post-grant opposition proceedings? If so, how does this system interact with the patent litigation system?

    Under Section 25 (2) of the Patents Act, 1970 at any time after the grant of Patent but before the expiry of a period of one year from the date of publication of grant of Patent, any person interested may give notice of opposition to the Controller in the prescribed manner on the grounds enumerated under the Section. A ‘person interested’ must be a person who has a direct, present and tangible commercial interest or public interest which is injured or affected by the continuance of the patent on the register.

    There have been instances where a patent which is the subject matter of a patent litigation was revoked on a post grant against which an appeal was instituted. In such a situation, the Courts usually stay the proceedings until final adjudication regarding the grant of the patent.

  17. To what extent are decisions from other fora/jurisdictions relevant or influential, and if so, are there any particularly influential fora/jurisdictions?

    It is upon the discretion of the Judges to consider decisions from other fora/jurisdictions relevant. They are not bound to follow them. In case there is lack of precedence or law on a certain legal aspect, Courts do consider the opinions of foreign courts although the same is not binding of them.

  18. How does a court determine whether it has jurisdiction to hear a patent action?

    The Court having jurisdiction means the court where the Defendant voluntarily resides or carries on business, and where there are more than one Defendant, where at least one of them at the time of commencement of the suit voluntarily resides or carries on business, or where the cause of action arose.

  19. What are the options for alternative dispute resolution (ADR) in patent cases? Are they commonly used? Are there any mandatory ADR provisions in patent cases?

    Mediation is governed by the Arbitration and Conciliation Act, 1996 and by the Code of Civil Procedure, 1908. The mediation process can be initiated in the following ways:

    1. Pre-litigation mediation/ Non-suit mediation- A request for pre-litigation mediation can be filed by either party or it may be filed jointly, before institution of a law-suit. Mediation proceedings are confidential and a settlement agreement reached during mediation is also confidential, except where its disclosure is necessary for its implementation and enforcement. Proposals exchanged are “without prejudice”, unless parties agree otherwise.
    2. Mediation during the pendency of a lawsuit: The court may, on its own and with the consent of the parties, or at the request of parties, refer a dispute to mediation while the suit is pending under Section 89 of the Code of Civil Procedure Code, 1908. If the parties reach a settlement during ongoing litigation mediation, then the court passes an order recording the settlement.
  20. What are the key procedural steps that must be satisfied before a patent action can be commenced? Are there any limitation periods for commencing an action?

    a) Article 88 of the Limitation Act, 1963 provides a period of limitation as three years from the date of infringement and not from the date of the grant.

    b) Procedural steps before a patent action can be instituted:

    • There are no pre-requisites that must be satisfied before a patent infringement suit may be instituted. There are some procedural steps while filing a patent infringement suit.
    • However, in case of a declaratory suit under Section 105 of the Patents Act, 1970, there the said person claiming such a relief must show that he has in writing sought for written acknowledgement from the patentee or his exclusive licensee to the effect of such a declaration so claimed and has also furnished him full particulars of the process or article in question, and; the patentee or his exclusive licensee has refused or neglected to give such an acknowledgement.
  21. Which parties have standing to bring a patent infringement action? Under which circumstances will a patent licensee have standing to bring an action?

    a) Article 88 of the Limitation Act, 1963 provides a period of limitation as three years from the date of infringement and not from the date of the grant.

    b) Procedural steps before a patent action can be instituted:

    • There are no pre-requisites that must be satisfied before a patent infringement suit may be instituted. There are some procedural steps while filing a patent infringement suit.
    • However, in case of a declaratory suit under Section 105 of the Patents Act, 1970, there the said person claiming such a relief must show that he has in writing sought for written acknowledgement from the patentee or his exclusive licensee to the effect of such a declaration so claimed and has also furnished him full particulars of the process or article in question, and; the patentee or his exclusive licensee has refused or neglected to give such an acknowledgement.
  22. Who has standing to bring an invalidity action against a patent? Is any particular connection to the patentee or patent required?

    a) Under Section 25(1) of the Patents Act, 1970 which provides for a pre-grant opposition, any person may oppose against the grant of a patent;

    b) Under Section 25(1) of the Patents Act, 1970 which provides for a post-grant opposition, any person interested may oppose against the grant of a patent;

    c) Under Section 64 of the Patents Act, 1970 which provides for revocation, if the revocation is filed before the Intellectual Property Appellate Board, the same may be filed a person interested or by the Central Government. Further, the defendant in a law-suit can seek revocation of a Patent through a counter-claim.

  23. Are interim injunctions available in patent litigation proceedings?

    Yes. Interim injunctions as a remedy is available in a patent litigation proceedings.

    The Plaintiff has to prove the elements of prima facie case, balance of convenience and irreparable harm and injury. In some cases where where the Plaintiff has succeeded in establishing a prima facie case and the Defendant’s product was not yet launched commercially, the Courts have held that it was appropriate that status quo be maintained which means that till final decision on the injunction application, the Defendant may not launch their product at the interim stage.

    There are various factors which may be taken into account while deciding whether an interim injunction should be granted, as below, among others:

    a) Whether Defendant has commercially launched the product;

    b) Whether there is a credible challenge regarding the validity of the patent being enforced;

    c) The likelihood of damage being caused to the Plaintiff if the injunction is not allowed;

    d) Whether the conduct of the Defendant has been malafide;

    e) Public interest;

    f) Whether there was an attempt to take a license from the Patentee and the license was available on fair and reasonable terms;

    g) Length of time between the expiry of the Patent and the time taken for grant of marketing authorization to the Defendant also should be factored in deciding the interim applications.

    h) Delay.

  24. What final remedies, both monetary and non-monetary, are available for patent infringement? Of these, which are most commonly sought and which are typically ordered?

    The Plaintiff in a suit for infringement is entitled to seek various forms of relief, including a permanent injunction, either damages or accounts for profits, delivery up, and seizure of infringing goods. The most commonly granted reliefs are –grant of a permanent injunction and costs. In many cases, other remedies are also granted like damages or account of profits and seizure/delivery up etc.

  25. On what basis are damages for patent infringement calculated? Is it possible to obtain additional or exemplary damages?

    Damages are of two kinds: compensatory damages and exemplary/punitive damages. Compensatory damages could be calculated on the basis of loss of licensee fees; royalty; profits made by the Defendant; loss caused to the Plaintiff etc.

    Punitive damages are granted for rare cases. It has been held by the Courts that where compensatory damage is inadequate to punish the Defendants for their outrageous conduct and therefore to deter them from repeating it, the actions of the Defendants merit an award of exemplary as well as aggravated damages.

    There are certain restrictions provided under Section 111 of the Patents Act, 1970 wherein damages may not be granted against the Defendant. For instance, where the Defendant proves that at the time of infringement, he was not aware and had no reasonable grounds to believe that the patent existed or where the Plaintiff/Patentee failed to pay the renewal fee within the prescribed period and before any extension of such period. Where the specification is amended after the publication, no damages will be awarded for the use of the invention before the date of such amendments except if the Plaintiff is able to prove that the specification was framed in good faith and with reasonable skill and knowledge.

  26. How readily are final injunctions granted in patent litigation proceedings?

    Where the patentee is able to prove infringement after final arguments, in most cases injunction follows. However, the courts have held that any permanent injunction shall be granted only for the term of the patent. A mere delay would not be a reason enough for refusal of a permanent injunction. Courts have inherent powers to grant injunctions. Only acquiescence or totally unexplained delay is a defense. The Defendant using laches as a ground of defense would have to establish that the delay was unreasonable and without cause and that such delay materially prejudiced him or her. Injunction may not be granted where the terms of patent was to expire in few months. In F. Hoffmann La Roche v Cipla, RFA (OS) 92/2012 order dated 8th December 2015, the Delhi High Court held that since the patent was expiring in 3-4 months and there was no injunction operating against the Defendant, the Court despite holding infringement held that instead of an injunction, the Defendant would be liable to render accounts concerning manufacture and sale of the infringing product.

  27. Are there provisions for obtaining declaratory relief, and if so, what are the legal and procedural requirements for obtaining such relief?

    As per Section 105 of the Patents Act, 1970 any person may institute a suit asking for a declaration that the use by him of any process, or the making, use, or sale of any article by him does not or would not constitute an infringement of a claim of a patent against the patentee or any one deriving title from the patentee.

    However, before proceeding with such an action, the said person claiming such a relief must show that he has in writing sought for written acknowledgement from the patentee or his exclusive licensee to the effect of such a declaration so claimed and has also furnished him full particulars of the process or article in question, and; the patentee or his exclusive licensee has refused or neglected to give such an acknowledgement.

  28. What are the costs typically incurred by each party to patent litigation proceedings at first instance? What are the typical costs of an appeal at each appellate level?

    The minimum court fees in a suit for patent infringement at the Delhi High Court is 2,00, 000.00 INR (approx. 2800 USD). The cost of litigation varies depending upon the counsel fees, complexity of the proceedings, interim proceedings etc.

  29. Can the successful party to a patent litigation action recover its costs?

    Yes. Courts have the discretion to grant costs, which includes the following:

    i) Expenses incurred;
    j) Courts fees and other office fees;
    k) Attorney Fees;
    l) Fees for conducting search and seizure and payment towards fees of the Court appointed Commissioner.

    Under Section 35A of the Code of Civil Procedure, 1908, the Court may award compensatory costs in respect of false or vexatious claims or defences. The Court, if it so thinks fit may, after recording its reasons for holding such claim or defense to be false or vexatious, make an order for the payment to the objector by the party by whom such claim or defense has been put forward, of cost by way of compensation.

  30. What are the biggest patent litigation growth areas in your jurisdiction in terms of industry sector?

    Pharma, Telecommunications, Software etc.

  31. What do you predict will be the most contentious patent litigation issues in your jurisdiction over the next twelve months?

    a) Standard essential patents;

    b) The concept of Markush Claims in Pharmaceutical Patents;

    c) The concept of Genus and Species Patent and the fact that one product can be protected by multiple patents;

    d) The interpretation and application of the Bolar exception;

    e) Assessment of Patent Infringement in case of process patents;

    f) Balancing equities of the parties in a patent law suit till final adjudication in the matter, by way of unique interim orders.

  32. Which aspects of patent litigation, either substantive or procedural, are most in need of reform in your jurisdiction?

    Developing legal jurisprudence regarding the breakthrough developments being made in the field of Artificial Intelligence;

    The provision of patent term adjustment/waiver of maintenance fees for time lost during patent prosecution should be added.

  33. What are the biggest challenges and opportunities confronting the international patent system?

    a) Developing legal jurisprudence regarding the breakthrough developments being made in the field of Artificial Intelligence;

    b) Uniformity in applying Doctrine of equivalence or purposive construction regarding infringement of Patents, across various jurisdictions;

    c) The concept of omnibus claims;

    d) Controlling abuse of dominance by Patent Trolls or Non-practicing entities.

    e) Concept of Patent Prosecution Highway under which participating patent offices agree that when an applicant receives a final ruling from a first patent office that at least one claim is allowed, the applicant may request fast track examination of corresponding claim(s) in a corresponding patent application that is pending in a second patent office, on the basis of the search and examination in the first patent office.