Patent infringement occurs when someone exercises one of the exclusive rights of a patent holder without authorisation. Under Section 48 of the Patents Act 1970, a patent grants the owner the exclusive right to make, use, offer for sale, sell or import the patented product (for product patents) or to use the patented process (for process patents) in India.
Infringement can be direct (the person themselves performs the infringing act) or contributory (the person supplies a product knowing it will be used to infringe). Indian courts have recognised contributory infringement in practice.
⚠ Important: Patent infringement proceedings can only be initiated for granted patents. If your patent application is still pending, you cannot file an infringement suit — though a pending application can deter competitors and preserve your priority date.
How to Detect Patent Infringement
- Claim chart analysis — Have a patent attorney map each element of your patent claims against the suspected infringing product or process. Infringement requires that the accused product/process meets every element of at least one claim.
- Market surveillance — Monitor competitor product launches, trade catalogues, import data (from customs records) and e-commerce listings for products that appear to use your patented technology.
- Reverse engineering — For product patents, purchase and disassemble the suspected infringing product. For process patents, analyse the final product for characteristics that indicate the use of the patented process.
- IP India Patent Search — Check whether the competitor has filed patent applications that may reference your technology.
Where to File a Patent Infringement Suit
Patent infringement suits are filed in the District Court having jurisdiction — within whose jurisdiction the plaintiff resides or carries on business, or the defendant resides or carries on business, or the cause of action arises. For complex technical issues or high monetary stakes, cases are often filed directly in the Delhi, Bombay, Madras or Calcutta High Courts, which have specialised IP divisions.
Civil Remedies for Patent Infringement
| Remedy | Description |
|---|---|
| Permanent Injunction | Court order permanently restraining the infringer from making, using or selling the patented product or process |
| Interlocutory Injunction | Urgent interim order to stop infringement during the pendency of the suit |
| Damages | Compensation for actual losses suffered as a result of the infringement |
| Account of Profits | Infringer required to account for profits made from the infringement (alternative to damages) |
| Delivery Up and Destruction | Infringing products and materials used to make them surrendered and destroyed |
| Costs | Legal costs of the proceedings awarded against the infringer |
Getting an Urgent Injunction
An interlocutory injunction can be obtained relatively quickly — often within days — if the patent holder can demonstrate: (1) a strong prima facie case that the patent is valid and has been infringed, (2) that the balance of convenience favours the patent holder, and (3) that damages alone would not adequately compensate for the harm caused by continued infringement.
Indian courts have granted ad-interim ex parte injunctions in patent cases — orders made without hearing the defendant's side — where urgency is demonstrated and there is a strong prima facie case.
Common Defences Against Patent Infringement Claims
- Non-infringement — The accused product/process does not meet one or more elements of the patent claim.
- Patent invalidity — The patent should not have been granted (prior art, lack of novelty, obviousness, Section 3 non-patentable subject matter).
- Exhaustion — The patented product was put on the market in India by or with the consent of the patent owner (first sale doctrine).
- Experimental use — The use was purely for scientific research or experimental purposes.
- Prior use — The defendant was already using the invention in India before the patent's priority date.
Immediate Steps When You Discover Infringement
- Consult a patent attorney immediately — do not approach the infringer directly without legal advice.
- Gather and preserve evidence — purchase infringing products, take screenshots of online listings, secure import records.
- Conduct a claims analysis — confirm that infringement is clear before spending resources on litigation.
- Send a cease and desist letter — often resolves infringement without litigation.
- File for an injunction if the infringer does not comply — act quickly to prevent further damage.
For urgent patent infringement matters, contact our IP litigation team immediately →
Has Your Patent Been Infringed?
Adv. Nikhil Soni handles patent infringement cases — from urgent injunction applications to full civil suits — before District Courts and High Courts across India.