Section 48 of the Indian Patent Act, 1970, confers exclusive rights to the patentee. Section 48 talks about the rights of a patentee to prevent third parties from making, using, selling, importing, or offering for sale, the patented product or process. Patent Filing suit for infringement Section 48 read as:
“A patent granted under this Act shall confer upon the patentee— Post Grant Opposition
After a patent has been granted, within one year of the publication of the grant of the patent, any person interested can file post-grant opposition against the grant of the patent. Post Grant opposition can be filed on the grounds mentioned in section 25(2). After the controller receives a notice of post-grant opposition, he informs the patentee. A copy of the statement and evidence shall be delivered to the patentee by an opponent. The patentee within two months of the receipt of the opponent’s statement and evidence can file a reply along with the evidence supporting his invention. If the patentee does not want to contest the opposition and does not file a reply within two months, then the patent is considered to be revoked. If a reply has been filed by a patentee then, within one month of filing a reply by the patentee the opponent can file his reply and evidence. No further reply will be submitted by either party, except in the direction of the controller.
An opposition board is constituted by the controller on receiving the notice of opposition. An opposition board consists of 3 members. One of the members is the chairman, second may be an examiner but not the same examiner who has dealt with the application.
- 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;
- where the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of 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.”
The Indian Patent Act, 1970 does not directly define the actions that constitute the infringement of a patent. By interpreting section 48 of the Indian Patent Act, 1970, one can say that violation of these rights constitutes an infringement of a patent.
Further, Patent enforcement by way of filing suit for infringement against the third party, under Section 104(A) of the Indian Patent Act, 1970 is the provision for infringement of a patent. Section 104(A) states that :
“(1) In any suit for infringement of a patent, where the subject matter of a patent is a process for obtaining a product, the court may direct the defendant to prove that the process used by him to obtain the product, identical to the product of the patented process, is different from the patented process if, :->
- The subject matter of the patent is a process for obtaining a new product; or
- There is a substantial likelihood that the identical product is made by the process, and the patentee or a person deriving title or interest in the patent from him, has been unable through reasonable efforts to determine the process actually used: Provided that the patentee or a person deriving title or interest in the patent from him first proves that the product is identical to the product directly obtained by the patented process.
- In considering whether a party has discharged the burden imposed upon him by sub-section (1), the court shall not require him to disclose any manufacturing or commercial secrets, if it appears to the court that it would be unreasonable to do so.”
Section 104(A) talks about the burden of the proof in cases of suits for infringement. As per section 104(A):
If the patent is granted for a process to obtain a product, then it is the duty of the defendant to prove that the process used by him to make a product, identical to the product of the plaintiff is different from that of the patented process. The patentee or a person deriving title or interest in the patent from the patentee first has to prove that the product obtained by the process used by the defendant, is identical to the product obtained by the patented process. Further section 105 to section 114, are related to patent infringement.