The Patents Act, 1970
Administered Ministry: Ministry of Commerce and Industry / Department of Promotion of Industry and Internal Trade
Section
Section 97 Repealed.
No text is published for this section.
Section 98 Repealed.
No text is published for this section.
Section 100 Power of Central Government to use inventions for purposes of Government.
(1)Notwithstanding anything contained in this Act, at any time after an application for a patent has been filed at the patent office or a patent has been granted, the Central Government and any person authorised in writing by it, may use the invention for the purposes of Government in accordance with the provisions of this Chapter.
(2) Where an invention has, before the priority date of the relevant claim of the complete specification, been duly recorded in a document, or tested or tried, by or on behalf of the Government or a Government undertaking, otherwise than in consequence of the communication of the invention directly or indirectly by the patentee or by a person from whom he derives title, any use of the invention by the Central Government or any person authorised in writing by it for the purposes of Government may be made free of any royalty or other remuneration to the patentee.
(3) If and so far as the invention has not been so recorded or tried or tested as aforesaid, any use of the invention made by the Central Government or any person authorised by it under sub-section (1), at any time after 1[grant of the patent] or in consequence of any such communication as aforesaid, shall be made upon terms as may be agreed upon either before or after the use, between the Central Government or any person authorised under sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court on a reference under section 103:
2[Provided that in case of any such use of any patent, the patentee shall be paid not more than adequate remuneration in the circumstances of each case, taking into account the economic value of the use of the patent.]
(4) The authorisation by the Central Government in respect of an invention may be given under this section, either before or after the patent is granted and either before or after the acts in respect of which such authorisation is given or done, and may be given to any person, whether or not he is authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the invention or import the machine, apparatus or other article or medicine or drug covered by such patent.
(5) Where an invention has been used by or with the authority of the Central Government for the purposes of Government under this section, then, 3[except in case of national emergency or other circumstances of extreme urgency or for non-commercial use], the Government shall notify the patentee as soon as practicable of the fact and furnish him with such information as to the extent of the use of the invention as he may, from time to time, reasonable require; and where the invention has been used for the purposes of a Government undertaking, the Central Government may call for such information as may be necessary for this purpose from such undertaking.
(6) The right to make, use, exercise and vend an invention for the purposes of Government under subsection (1) shall include the 4[right to sell, on non-commercial basis, the goods] which have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorised under sub-section (1) were the patentee of the invention.
(7) Where in respect of a patent which has been the subject of an authorisation under this section, there is an exclusive licensee as is referred to in sub-section (3) of section 101, or where such patent has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention (including payments by way of minimum royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive licensee or assignor as the case may be, and the reference to the patentee in sub-section (3) shall be deemed to include a reference to such assignor or exclusive licensee.
(2) Where an invention has, before the priority date of the relevant claim of the complete specification, been duly recorded in a document, or tested or tried, by or on behalf of the Government or a Government undertaking, otherwise than in consequence of the communication of the invention directly or indirectly by the patentee or by a person from whom he derives title, any use of the invention by the Central Government or any person authorised in writing by it for the purposes of Government may be made free of any royalty or other remuneration to the patentee.
(3) If and so far as the invention has not been so recorded or tried or tested as aforesaid, any use of the invention made by the Central Government or any person authorised by it under sub-section (1), at any time after 1[grant of the patent] or in consequence of any such communication as aforesaid, shall be made upon terms as may be agreed upon either before or after the use, between the Central Government or any person authorised under sub-section (1) and the patentee, or, as may in default of agreement be determined by the High Court on a reference under section 103:
2[Provided that in case of any such use of any patent, the patentee shall be paid not more than adequate remuneration in the circumstances of each case, taking into account the economic value of the use of the patent.]
(4) The authorisation by the Central Government in respect of an invention may be given under this section, either before or after the patent is granted and either before or after the acts in respect of which such authorisation is given or done, and may be given to any person, whether or not he is authorised directly or indirectly by the applicant or the patentee to make, use, exercise or vend the invention or import the machine, apparatus or other article or medicine or drug covered by such patent.
(5) Where an invention has been used by or with the authority of the Central Government for the purposes of Government under this section, then, 3[except in case of national emergency or other circumstances of extreme urgency or for non-commercial use], the Government shall notify the patentee as soon as practicable of the fact and furnish him with such information as to the extent of the use of the invention as he may, from time to time, reasonable require; and where the invention has been used for the purposes of a Government undertaking, the Central Government may call for such information as may be necessary for this purpose from such undertaking.
(6) The right to make, use, exercise and vend an invention for the purposes of Government under subsection (1) shall include the 4[right to sell, on non-commercial basis, the goods] which have been made in exercise of that right, and a purchaser of goods so sold, and a person claiming through him, shall have the power to deal with the goods as if the Central Government or the person authorised under sub-section (1) were the patentee of the invention.
(7) Where in respect of a patent which has been the subject of an authorisation under this section, there is an exclusive licensee as is referred to in sub-section (3) of section 101, or where such patent has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention (including payments by way of minimum royalty), the notice directed to be given under sub-section (5) shall also be given to such exclusive licensee or assignor as the case may be, and the reference to the patentee in sub-section (3) shall be deemed to include a reference to such assignor or exclusive licensee.
1. Subs. by Act 15 of 2005, s. 56, for "the acceptance of the complete specification in respect of the patent" (w.e.f. 1-1-2005).
2. Subs. by Act 38 of 2002, s. 41, for the proviso (w.e.f. 20-5-2003).
3. Subs. by s. 41, ibid., for certain words (w.e.f. 20-5-2003).
4 Subs. by s. 41, ibid., for "right to sell the goods" (w.e.f. 20-5-2003).
2. Subs. by Act 38 of 2002, s. 41, for the proviso (w.e.f. 20-5-2003).
3. Subs. by s. 41, ibid., for certain words (w.e.f. 20-5-2003).
4 Subs. by s. 41, ibid., for "right to sell the goods" (w.e.f. 20-5-2003).
Section 101 Rights of third parties in respect of use of invention for purposes of Government.
(1) In relation to any use of a patented invention, or an invention in respect of which an application for a patent is pending, made for the purposes of Government--
(a) by the Central Government or any person authorised by the Central Government under section 100; or
(b) by the patentee or applicant for the patent to the order made by the Central Government,
the provisions of any licence, assignment or agreement granted or made, 1 *** between the patentee or applicant for the patent (or any person who derives title from him or from whom he derives title) and any person other than the Central Government shall be of no effect so far as those provisions--
(i) restrict or regulate the use for the purposes of Government of the invention, or of any model, document or information relating thereto, or
(ii) provide for the making of payments in respect of any use of the invention or of the model, document or information relating thereto for the purposes of Government 2***,
and the reproduction or publication of any model or document in connection with the said use for the purposes of Government shall not be deemed to be an infringement of any copyright subsisting in the model or document.
(2) Where the patent, or the right to apply for or obtain the patent, has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention 2***, then, in relation to any use of the invention made for the purposes of Government by the patentee to the order of the Central Government, sub-section (3) of section 100 shall have effect as if that use were made by the virtue of an authority given under that section; and any rise of the invention for the purposes of Government by virtue of sub-section (3) of that section shall have effect as if the reference to the patentee included a reference to the assignor of the patent, and any sum payable by virtue of that sub-section shall be divided between the patentee and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103.
(3) Where by virtue of sub-section (3) of section 100, payments are required to be made by the Central Government or persons authorised under sub-section (2) of that section in respect of the use of an invention for the purposes of Government and where in respect of such patent there is an exclusive licensee authorised under his licence to use the invention for the purposes of Government, such sum shall be shared by the patentee and such licensee in such proportions, if any, as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103 to be just, having regard to any expenditure incurred by the licensee--
(a) in developing the said invention; or
(b) in making payments to the patentees other than royalties or other benefits determined by reference to the use of the invention 3*** in consideration of the licence.
(a) by the Central Government or any person authorised by the Central Government under section 100; or
(b) by the patentee or applicant for the patent to the order made by the Central Government,
the provisions of any licence, assignment or agreement granted or made, 1 *** between the patentee or applicant for the patent (or any person who derives title from him or from whom he derives title) and any person other than the Central Government shall be of no effect so far as those provisions--
(i) restrict or regulate the use for the purposes of Government of the invention, or of any model, document or information relating thereto, or
(ii) provide for the making of payments in respect of any use of the invention or of the model, document or information relating thereto for the purposes of Government 2***,
and the reproduction or publication of any model or document in connection with the said use for the purposes of Government shall not be deemed to be an infringement of any copyright subsisting in the model or document.
(2) Where the patent, or the right to apply for or obtain the patent, has been assigned to the patentee in consideration of royalties or other benefits determined by reference to the use of the invention 2***, then, in relation to any use of the invention made for the purposes of Government by the patentee to the order of the Central Government, sub-section (3) of section 100 shall have effect as if that use were made by the virtue of an authority given under that section; and any rise of the invention for the purposes of Government by virtue of sub-section (3) of that section shall have effect as if the reference to the patentee included a reference to the assignor of the patent, and any sum payable by virtue of that sub-section shall be divided between the patentee and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103.
(3) Where by virtue of sub-section (3) of section 100, payments are required to be made by the Central Government or persons authorised under sub-section (2) of that section in respect of the use of an invention for the purposes of Government and where in respect of such patent there is an exclusive licensee authorised under his licence to use the invention for the purposes of Government, such sum shall be shared by the patentee and such licensee in such proportions, if any, as may be agreed upon between them or as may in default of agreement be determined by the High Court on a reference under section 103 to be just, having regard to any expenditure incurred by the licensee--
(a) in developing the said invention; or
(b) in making payments to the patentees other than royalties or other benefits determined by reference to the use of the invention 3*** in consideration of the licence.
1.The words ", whether before or after the commencement of this Act," omitted by Act 38 of 2002, s. 42 (w.e.f. 20-5-2003).
2.The brackets and words "(including payments by way of minimum royalty)" omitted by s. 42, ibid. (w.e.f. 20-5-2003).
3.The words "including payments by way of minimum royalty" omitted by s. 42, ibid. (w.e.f. 20-5-2003).
2.The brackets and words "(including payments by way of minimum royalty)" omitted by s. 42, ibid. (w.e.f. 20-5-2003).
3.The words "including payments by way of minimum royalty" omitted by s. 42, ibid. (w.e.f. 20-5-2003).
Section 102 Acquisition of inventions and patents by the Central Government.
(1) The Central Government may, if satisfied that it is necessary that an invention which is the subject of an application for a patent or a patent should be acquired from the applicant or the patentee for a public purpose, publish a notification to that effect in the Official Gazette, and thereupon the invention or patent and all rights in respect of the invention or patent shall, by force of this section, stand transferred to and be vested in the Central Government.
(2) Notice of the acquisition shall be given to the applicant, and, where a patent has been granted, to the patentee and other persons, if any, appearing in the register as having an interest in the patent.
(3) The Central Government shall pay to the applicant, or, as the case may be, the patentee and other persons appearing on the register as having an interest in the patent such compensation as may be agreed upon between the Central Government and the applicant, or the patentee and other persons; or, as may, in default of agreement, be determined by the High Court on a reference under section 103 to be just having regard to the expenditure incurred in connection with the invention and, in the case of a patent, the term thereof, the period during which and the manner in which it has already been worked (including the profits made during such period by the patentee or by his licensee whether exclusive or otherwise) and other relevant factors.
(2) Notice of the acquisition shall be given to the applicant, and, where a patent has been granted, to the patentee and other persons, if any, appearing in the register as having an interest in the patent.
(3) The Central Government shall pay to the applicant, or, as the case may be, the patentee and other persons appearing on the register as having an interest in the patent such compensation as may be agreed upon between the Central Government and the applicant, or the patentee and other persons; or, as may, in default of agreement, be determined by the High Court on a reference under section 103 to be just having regard to the expenditure incurred in connection with the invention and, in the case of a patent, the term thereof, the period during which and the manner in which it has already been worked (including the profits made during such period by the patentee or by his licensee whether exclusive or otherwise) and other relevant factors.
Section 103 Reference to High Court of disputes as to use for purposes of Government.
(1) Any dispute as to the exercise by the Central Government or a person authorised by it of the powers conferred by section 100, or as to terms for the use of an invention for the purposes of Government thereunder or as to the right of any person to receive any part of a payment made in pursuance of sub-section (3) of that section or as to the amount of compensation payable for the acquisition of an invention or a patent under section 102, may be referred to the High Court by either party to the dispute in such manner as may be prescribed by the rules of the High Court.
(2) In any proceeding under this section to which the Central Government is a party, the Central Government may,--
(a) if the patentee is a party to the proceedings, petition by way of counter-claim for revocation of the patent on any ground upon which a patent may be revoked under section 64; and
(b) whether a patentee is or is not a party to the proceedings, put in issue the validity of the patent without petitioning for its revocation.
(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.
(4) In determining under this section any dispute between the Central Government and any person as to terms for the use of an invention for the purposes of Government, the High Court shall have regard to any benefit or compensation which that person or any person from whom he derive title, may have received, or may be entitled to receive, directly or indirectly in respect of the use of the invention in question for the purposes of Government.
(5) In any proceedings under this section, the High Court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to an official referee, commissioner or an arbitrator on such terms as the High Court may direct, and references to the High Court in the foregoing provisions of this section shall be construed accordingly.
(6) Where the invention claimed in a patent was made by a person who at the time it was made was in the service of the Central Government or of a State Government or was an employee of a Government undertaking and the subject-matter of the invention is certified by the relevant Government or the principal officer of the Government undertaking to be connected with the work done in the course of the normal duties of the Government servant or employee of the Government undertaking, then, notwithstanding anything contained in this section, any dispute of the nature referred to in sub-section (1) relating to the invention shall be disposed of by the Central Government conformably to the provisions of this section so far as may be applicable, but before doing so the Central Government shall give an opportunity to the patentee and such other parties as it considers have an interest in the matter to be heard.
(2) In any proceeding under this section to which the Central Government is a party, the Central Government may,--
(a) if the patentee is a party to the proceedings, petition by way of counter-claim for revocation of the patent on any ground upon which a patent may be revoked under section 64; and
(b) whether a patentee is or is not a party to the proceedings, put in issue the validity of the patent without petitioning for its revocation.
(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.
(4) In determining under this section any dispute between the Central Government and any person as to terms for the use of an invention for the purposes of Government, the High Court shall have regard to any benefit or compensation which that person or any person from whom he derive title, may have received, or may be entitled to receive, directly or indirectly in respect of the use of the invention in question for the purposes of Government.
(5) In any proceedings under this section, the High Court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to an official referee, commissioner or an arbitrator on such terms as the High Court may direct, and references to the High Court in the foregoing provisions of this section shall be construed accordingly.
(6) Where the invention claimed in a patent was made by a person who at the time it was made was in the service of the Central Government or of a State Government or was an employee of a Government undertaking and the subject-matter of the invention is certified by the relevant Government or the principal officer of the Government undertaking to be connected with the work done in the course of the normal duties of the Government servant or employee of the Government undertaking, then, notwithstanding anything contained in this section, any dispute of the nature referred to in sub-section (1) relating to the invention shall be disposed of by the Central Government conformably to the provisions of this section so far as may be applicable, but before doing so the Central Government shall give an opportunity to the patentee and such other parties as it considers have an interest in the matter to be heard.
Section 104 Jurisdiction.
No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:
Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.
Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.
Section 104A Burden of proof in case of suits concerning infringement.
1[104A. Burden of proof in case of suits concerning infringement.--(1) In any suit for infringement of a patent, where the subject matter of 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,--
(a) the subject matter of the patent is a process for obtaining a new product; or
(b) 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.
(2) 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.]
(a) the subject matter of the patent is a process for obtaining a new product; or
(b) 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.
(2) 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.]
1. Ins. by Act 38 of 2002, s. 43 (w.e.f. 20-5-2003).
Section 105 Power of court to make declaration as to non-infringement.
(1)Notwithstanding anything contained in section 34 of the Specific Relief Act, 1963 (47 of 1963), any person may institute a suit 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 the holder of an exclusive licence under the patent, notwithstanding that no assertion to the contrary has been made by the patentee or the licensee, if it is shown--
(a) that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and
(b) that the patentee or licensee has refused or neglected to give such an acknowledgment.
(2) The costs of all parties in a suit for a declaration brought by virtue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.
(3) The validity of a claim of the specification of a patent shall not be called in question in a suit for a declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.
(4) A suit for a declaration may be brought by virtue of this section at any time 1[after the publication of grant of a patent], and references in this section to the patentee shall be construed accordingly.
(a) that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has furnished him with full particulars in writing of the process or article in question; and
(b) that the patentee or licensee has refused or neglected to give such an acknowledgment.
(2) The costs of all parties in a suit for a declaration brought by virtue of this section shall, unless for special reasons the court thinks fit to order otherwise, be paid by the plaintiff.
(3) The validity of a claim of the specification of a patent shall not be called in question in a suit for a declaration brought by virtue of this section, and accordingly the making or refusal of such a declaration in the case of a patent shall not be deemed to imply that the patent is valid or invalid.
(4) A suit for a declaration may be brought by virtue of this section at any time 1[after the publication of grant of a patent], and references in this section to the patentee shall be construed accordingly.
1. Subs. by Act 15 of 2005, s. 57, for certain words (w.e.f. 1-1-2005).
Section 106 Power of court to grant relief in cases of groundless threats of infringement proceedings.
(1) Where any person (whether entitled to or interested in a patent or an application for a patent or not) threatens any other person by circulars or advertisements or by communications, oral or in writing addressed to that or any other person, with proceedings for infringement of a patent, any person aggrieved thereby may bring a suit against him praying for the following reliefs, that is to say--
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats; and
(c) such damages, if any, as he has sustained thereby.
(2) Unless in such suit the defendant proves that the acts in respect of which the proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising from the publication of a complete specification in respect of a claim of the specification not shown by the plaintiff to be invalid, the court may grant to the plaintiff all or any of the reliefs prayed for.
Explanation.--A mere notification of the 1[existence] of a patent does not constitute a threat of proceeding within the meaning of this section.
(a) a declaration to the effect that the threats are unjustifiable;
(b) an injunction against the continuance of the threats; and
(c) such damages, if any, as he has sustained thereby.
(2) Unless in such suit the defendant proves that the acts in respect of which the proceedings were threatened constitute or, if done, would constitute, an infringement of a patent or of rights arising from the publication of a complete specification in respect of a claim of the specification not shown by the plaintiff to be invalid, the court may grant to the plaintiff all or any of the reliefs prayed for.
Explanation.--A mere notification of the 1[existence] of a patent does not constitute a threat of proceeding within the meaning of this section.
1. Subs. by Act 56 of 1974, s. 3 and the Second Schedule, for existing (w.e.f. 20-12-1974).
Section 107 Defences, etc., in suit for infringement.
(1) In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for defence.
(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.
(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.
Section 107A Certain acts not to be considered as infringement.
1[107A. Certain acts not to be considered as infringement.--For the purposes of this Act,--
(a) any act of making, constructing, 2[using, selling or importing] a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, 3[use, sale or import] of any product;
(b) importation of patented products by any person from a person 4[who is duly authorised under the law to produce and sell or distribute the product],
shall not be considered as an infringement of patent rights.]
(a) any act of making, constructing, 2[using, selling or importing] a patented invention solely for uses reasonably related to the development and submission of information required under any law for the time being in force, in India, or in a country other than India, that regulates the manufacture, construction, 3[use, sale or import] of any product;
(b) importation of patented products by any person from a person 4[who is duly authorised under the law to produce and sell or distribute the product],
shall not be considered as an infringement of patent rights.]
1. Ins. by Act 38 of 2002, s. 44 (w.e.f 20-5-2003).
2. Subs. by Act 15 of 2005, s. 58, for "using or selling" (w.e.f. 1-1-2005).
3. Subs. by s. 58, ibid., for "use or sale" (w.e.f. 1-1-2005).
4. Subs. by s. 58, ibid., for "who is duly authorised by the patentee to sell or distribute the product" (w.e.f. 1-1-2005).
2. Subs. by Act 15 of 2005, s. 58, for "using or selling" (w.e.f. 1-1-2005).
3. Subs. by s. 58, ibid., for "use or sale" (w.e.f. 1-1-2005).
4. Subs. by s. 58, ibid., for "who is duly authorised by the patentee to sell or distribute the product" (w.e.f. 1-1-2005).
Section 108 Reliefs in suits for infringement.
1[(1)] The reliefs which a court may grant in any suit for infringement include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.
2[(2) The court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.]
2[(2) The court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.]
1. Section 108 renumbered as sub-section (1) thereof by Act 38 of 2002, s. 45 (w.e.f. 20-5-2003).
2. Ins. by s. 45, ibid. (w.e.f. 20-5-2003).
2. Ins. by s. 45, ibid. (w.e.f. 20-5-2003).
Section 109 Right of exclusive licensee to take proceedings against infringement.
(1) The holder of an exclusive licence shall have the like right as the patentee to institute a suit in respect of any infringement of the patent committed after the date of the licence, and in awarding damages or an account of profits or granting any other relief in any such suit the court shall take into consideration any loss suffered or likely to be suffered by the exclusive licensee as such or, as the case may be, the profits earned by means of the infringement so far as it constitutes an infringement of the rights of the exclusive licensee as such.
(2) In any suit for infringement of a patent by the holder of an exclusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
(2) In any suit for infringement of a patent by the holder of an exclusive licence under sub-section (1), the patentee shall, unless he has joined as a plaintiff in the suit, be added as a defendant, but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
Section 110 Right of licensee under section 84 to take proceedings against infringement.
Any person to whom a licence has been granted under section 84 shall be entitled to call upon the patentee to take proceedings to prevent any infringement of the patent, and, if the patentee refuses or neglects to do so within two months after being so called upon, the licensee may institute proceedings for the infringement in his own name as though he were the patentee, making the patentee a defendant; but a patentee so added as defendant shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
Section 111 Restriction on power of court to grant damages or account of profits for infringement.
(1)In a suit for infringement of a patent, damages or an account of profits shall not be granted against the defendant who proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed.
Explanation.--A person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason only of the application to an article of the word "patent", "patented" or any word or words expressing or implying that a patent has been obtained for the article, unless the number of the patent accompanies the word or words in question.
(2) In any suit for infringement of a patent the court may, if it thinks fit, refuse to grant any damages or an account of profits in respect of any infringement committed after a failure to pay any renewal fee within the prescribed period and before any extension of that period.
(3) Where an amendment of a specification by way of disclaimer, correction or explanation has been allowed under this Act after the publication of the specification, no damages or account of profits shall be granted in any proceedings in respect of the use of the invention before the date of the decision allowing the amendment, unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.
(4) Nothing in this section shall affect the power of the court to grant an injunction in any suit for infringement of a patent.
Explanation.--A person shall not be deemed to have been aware or to have had reasonable grounds for believing that a patent exists by reason only of the application to an article of the word "patent", "patented" or any word or words expressing or implying that a patent has been obtained for the article, unless the number of the patent accompanies the word or words in question.
(2) In any suit for infringement of a patent the court may, if it thinks fit, refuse to grant any damages or an account of profits in respect of any infringement committed after a failure to pay any renewal fee within the prescribed period and before any extension of that period.
(3) Where an amendment of a specification by way of disclaimer, correction or explanation has been allowed under this Act after the publication of the specification, no damages or account of profits shall be granted in any proceedings in respect of the use of the invention before the date of the decision allowing the amendment, unless the court is satisfied that the specification as originally published was framed in good faith and with reasonable skill and knowledge.
(4) Nothing in this section shall affect the power of the court to grant an injunction in any suit for infringement of a patent.
Section 112 [Omitted.].
[Restriction on power of court to grant injunction in certain cases.]--Omitted by the Patents (Amendment) Act, 2002 (38 of 2002), s. 46 (w.e.f. 20-5-2003).
Section 113 Certificate of validity of specification and costs of subsequent suits for infringement thereof.
1[(1) If in any proceedings before 2*** a High Court for the revocation of a patent under section 64 and section 104, 3*** the validity of any claim of a specification is contested and that claim is found by 2*** the High Court to be valid, 2*** the High Court may certify that the validity of that claim was contested in those proceedings and was upheld.]
(2) Where any such certificate has been granted, then, if in any subsequent suit before a court for infringement of that claim of the patent or in any subsequent proceeding for revocation of the patent in so far as it relates to that claim, the patentee or other person relying on the validity of the claim obtains a final order or judgment in his favour, he shall be entitled to an order for the payment of his full costs, charges and expenses of an incidental to any such suit or proceeding properly incurred so far as they concern the claim in respect of which the certificate was granted, unless the court trying the suit or proceeding otherwise directs:
Provided that the costs as specified in this sub-section shall not be ordered when the party disputing the validity of the claim satisfies the court that he was not aware of the grant of the certificate when he raised the dispute and withdrew forthwith such defence when he became aware of such a certificate.
4[(3) Nothing contained in this section shall be construed as authorising the courts 2*** hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.]
(2) Where any such certificate has been granted, then, if in any subsequent suit before a court for infringement of that claim of the patent or in any subsequent proceeding for revocation of the patent in so far as it relates to that claim, the patentee or other person relying on the validity of the claim obtains a final order or judgment in his favour, he shall be entitled to an order for the payment of his full costs, charges and expenses of an incidental to any such suit or proceeding properly incurred so far as they concern the claim in respect of which the certificate was granted, unless the court trying the suit or proceeding otherwise directs:
Provided that the costs as specified in this sub-section shall not be ordered when the party disputing the validity of the claim satisfies the court that he was not aware of the grant of the certificate when he raised the dispute and withdrew forthwith such defence when he became aware of such a certificate.
4[(3) Nothing contained in this section shall be construed as authorising the courts 2*** hearing appeals from decrees or orders in suits for infringement or petitions for revocation, as the case may be, to pass orders for costs on the scale referred to therein.]
1. Subs. by Act 15 of 2005, s. 59, for sub-section (1) (w.e.f. 2-4-2007).
2. The words “the Appellate Board or” omitted by Act 33 of 2021, s. 13 (w.e.f. 4-4-2021).
3. The words “as the case may be” omitted by s. 13, ibid. (w.e.f. 4-4-2021).
4. Subs. by s. 59, ibid., for sub-section (3) (w.e.f. 2-4-2007).
2. The words “the Appellate Board or” omitted by Act 33 of 2021, s. 13 (w.e.f. 4-4-2021).
3. The words “as the case may be” omitted by s. 13, ibid. (w.e.f. 4-4-2021).
4. Subs. by s. 59, ibid., for sub-section (3) (w.e.f. 2-4-2007).
Section 114 Relief for infringement of partially valid specification.
(1) If in proceedings for infringement of a patent it is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid, but that any other claim is invalid, the court may grant relief in respect of any valid claim which is infringed:
Provided that the court shall not grant relief except by way of injunction save in the circumstances mentioned in sub-section (2).
(2) Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned, and in exercising such discretion the court may take into consideration the conduct of the parties in inserting such invalid claims in the specification or permitting them to remain there.
Provided that the court shall not grant relief except by way of injunction save in the circumstances mentioned in sub-section (2).
(2) Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned, and in exercising such discretion the court may take into consideration the conduct of the parties in inserting such invalid claims in the specification or permitting them to remain there.
Section 115 Scientific advisers.
(1) In any suit for infringement or in any proceeding before a court under this Act, the court may at any time, and whether or not an application has been made by any party for that purpose, appoint an independent scientific adviser to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.
(2) The remuneration of the scientific adviser shall be fixed by the court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose.
(2) The remuneration of the scientific adviser shall be fixed by the court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose.