Patent infringement in India occurs when an act falls within a patentee's exclusive rights and is carried out without consent or another lawful basis. The starting point is Section 48 of the Patents Act, 1970, read with the patent's claims and the Act's exceptions. Similarity between two products, by itself, does not establish infringement.
For students, inventors and businesses, the central questions are practical: what does the patent protect, what has the other person done, and does a defence or exception apply? This guide explains those questions, the special evidentiary rule for process patents, and the remedies a civil court may grant.
What rights can be infringed?
Section 48 distinguishes product patents from process patents. The distinction identifies the acts the patentee may prevent; it does not dispense with the need to interpret the claims.
For a product patent, the exclusive right covers making, using, offering for sale, selling, or importing the patented product in India for those purposes without consent. For a process patent, it covers using the patented process, as well as using, offering for sale, selling, or importing for those purposes the product obtained directly by that process in India. These rights are expressly subject to other provisions of the Act and the conditions in Section 47. See the official Patents Act, Sections 47–48.
A patent is territorial: an overseas patent alone does not establish an Indian patent monopoly. The relevant Indian patent, its operative claims and its status must be identified. Whether the patent was in force when the alleged act occurred also matters; an allegation about past conduct must be assessed against the rights then existing.
Patent infringement is enforced through civil proceedings under the Act. It should not be confused with separate statutory offences or penalties concerning matters such as falsification of records or unauthorised claims of patent rights.
How courts test patent infringement
The analysis begins with claim construction: determining the meaning and scope of the claims. Section 10(4)(c) requires claims defining the protection sought, while Section 10(5) requires them to be clear, succinct and fairly based on the disclosed matter. The specification and relevant technical context help explain what the claims mean.
The court then compares the properly construed claim with the accused product or process. Comparing the patentee's marketed product with a competitor's product can be misleading because the marketed product may contain features beyond the claim. The legal boundary is the claim itself. LawShow's guide to patent specifications and claims explains that distinction in more detail.
A useful working method is a claim chart: place each claimed feature in one column and the evidence of its presence, absence or alleged equivalent in another. This makes disputed technical points visible. It also prevents a broad assertion that two products serve the same purpose from replacing proof of the claimed invention.
Literal infringement and infringement by equivalents concern how the accused implementation relates to the claims. They are different from allegations that one person helped another to infringe. US categories such as inducement and contributory infringement should not be imported automatically into an Indian dispute; the acts and legal basis attributed to each defendant must be established.
Who must prove infringement of a process patent?
An infringement claimant normally needs evidence connecting the accused conduct to the patent. Section 104A provides a special mechanism where the subject matter is a process for obtaining a product. Its conditions are important because manufacturing methods may be difficult for an outsider to inspect.
The claimant must first prove that the defendant's product is identical to the product directly obtained by the patented process. The court may then direct the defendant to prove that its process is different if either:
- the patented process obtains a new product; or
- there is a substantial likelihood that the identical product was made by the patented process, and reasonable efforts have not enabled the patentee or relevant rights-holder to discover the process actually used.
Thus, identical products alone do not create an automatic reversal of the burden in every process-patent dispute. The additional statutory conditions and the court's direction matter. Section 104A(2) also protects against unreasonable disclosure of manufacturing or commercial secrets. The complete rule appears in Section 104A.
Defences and statutory exceptions
An accused party may contest claim coverage, authorisation, the alleged acts or the patent's validity. Under Section 107(1), every ground of revocation available under Section 64 is also available as a defence in an infringement suit. Depending on the facts, these can include lack of novelty, obviousness or defects in disclosure. A patent's grant does not make every validity challenge unavailable.
Other protections have specific conditions:
- Experiment and research: Section 47(3) permits the specified making or use merely for experiment or research, including instruction of pupils. Labelling an activity “research” does not establish that it satisfies this limitation.
- Regulatory use: Section 107A(a), commonly called the Bolar exception, covers the listed acts solely for uses reasonably related to developing and submitting information required by regulatory law in India or another country. It is not a general exemption for ordinary commercial sales.
- Certain imports: Section 107A(b) covers importation from a person duly authorised under the law to produce and sell or distribute the product. Whether a particular source qualifies requires attention to the provision and applicable interpretation; purchase abroad alone should not be treated as sufficient.
- Consent or statutory authority: A licence or other lawful authority may answer an allegation, but its scope and conditions must cover the conduct in question.
These protections are grounded in Sections 47, 107 and 107A. They require facts and evidence, just as infringement does.
Who can sue, and in which court?
Section 104 governs jurisdiction. An infringement suit cannot be instituted in a court inferior to a district court having jurisdiction. If the defendant counterclaims for revocation, the suit and counterclaim are transferred to the High Court. The appropriate forum also depends on the applicable territorial, pecuniary and commercial-court requirements.
The right of every licensee to sue should not be assumed. Section 109 gives an exclusive licensee the specified right to sue for infringement committed after the licence date. Section 110 separately addresses a licensee under Section 84 and imposes conditions, including first calling on the patentee to act and allowing two months for a response. These provisions should be distinguished from Section 104's forum rule. See Sections 104 and 109–110.
Injunctions, damages and other remedies
Under Section 108, the court may grant an injunction and, at the plaintiff's option, either damages or an account of profits. Damages concern compensation for loss; an account of profits concerns profits attributable to infringement. They are alternative monetary remedies under this provision, rather than an automatic double recovery.
The court may also order seizure, forfeiture or destruction of infringing goods and materials or implements predominantly used to create them, as appropriate to the circumstances. These are discretionary judicial remedies, not automatic consequences of sending a demand letter.
Knowledge can affect monetary relief. Section 111(1) bars damages or an account of profits against a defendant who proves that, at the relevant date, it neither knew nor had reasonable grounds to believe the patent existed. Section 111(4) preserves the court's power to grant an injunction. Innocent infringement therefore cannot be described simply as a complete defence to all relief. See Sections 108–111.
A practical way to assess an allegation
Start with the patent number, granted claims, ownership or licence documents, and relevant dates. Identify the accused acts, prepare a claim comparison, and preserve the technical and commercial evidence. Then examine validity, consent, statutory exceptions and the specific relief sought. An interim order and a final decision after trial should always be read according to their procedural stage.
For the wider relationship between ownership, licensing and enforcement, see LawShow's rights and obligations of a patentee. A defensible infringement assessment connects the statute, claims and evidence; it cannot rest on the appearance of a competing product alone.
Last verified: 14 September 2026, 3:38 PM IST. This is a legal explainer. Statutory references were checked against IP India’s listed consolidation through 1 August 2024; cited judgments are historical authorities.
