PATENTS

Meaning of Patent

Patent: Ethical and Legal perspectives

Patent in India: Historical Overview

Patent Protection in India

Patent Protection: International Instruments

FIRST PATENT GRANTED IN WORLD
The first recorded patent for an industrial invention was granted in 1421 in Florence to the architect and engineer Filippo
Brunelleschi. The patent gave him a three-year right on the manufacture of a barge with hoisting gear used to transport
marble.
FIRST PATENT GRANTED IN INDIA
First patent granted in India was to George Alfred De Penning for his “An Efficient Punkah Pulling Machine”
on September 2, 1856.
 KING OF (PATENTS) INVENTIONS

THOMAS (ALVA) EDISON

1093 patents
 KING OF PATENTS

SHUNPEI YAMAZAKI

12,587 U.S patents

 PATENTS
Patent Law Developments –

• Paris Convention, 1883: National Treatment (Countries to provide same rights as they are providing to their
own nationals, Right to Priority (application filed in one contracting party will be considered same as that for all
the parties), Common Rules (Patent are independent of each other).

• 1859-grant of exclusive privileges (making, selling and using inventions in India and authorizing others to do so)
to inventors for useful inventions-14 years from date of filing.

• 1872-Patents and designs were consolidated under one law

• 1911 -Controller of Patents made in-charge of management and administration

• 1950 and the 1952 compulsory license on patents in respect of food and medicines, insecticide, germicide or
fungicide (Tek Chand Committee Report)

• 1959 Justice N Rajagopala Ayyangar Report

• Patent Act 1970

PATENT COOPERATIVE TREATY, 1970 –
BUDAPEST TREATY ON THE INTERNATIONAL RECOGNITION OF THE DEPOSIT OF
MICROORGANISMS FOR THE PURPOSES OF PATENT PROCEDURE, 1977

The main feature of the Treaty is that a contracting State which allows or requires the deposit of microorganisms for
the purposes of patent procedure must recognize, for such purposes, the deposit of a microorganism with any
“international depositary authority”, irrespective of whether such authority is on or outside the territory of the said
State.
 PATENTS
JUSTICE AYYANGAR REPORT, 1959:
Two main factors:

• Country needs to be technologically advanced to maintain the rate of invention which is brought forth by the
promise of the reward.

• the degree of diffusion of scientific and technological education and the number of persons reaching high
proficiency by such education;

• a massive industrial production which could absorb this R&D

• capital investment

• patented invention must be worked in the country which grants the patents.
 PATENTS
SCOPE OF PATENTS

The scope of a patent right is governed by Section 48 of the Patents Act whose language makes
it clear that the right so granted under the statute is not absolute.

In fact, the provision expressly states that the right granted by and under Section 48 is “subject
to other provision” of the Patents Act and the conditions specified in Section 47.
 PATENTS
ETHICAL PROSPECTIVES
1.Access To Knowledge: It spins around the harmony between safeguarding the privileges of creators
and developers meanwhile guaranteeing that society overall can access and profit from information, data,
and progressions.
Especially when it comes to patents on pharmaceuticals, it can put restrictions and limitations on access
to essential medicines for the poor people or even nations.
This issue is really serious as it concerns with life and health of the people and patents are granted on
essential medicines and drugs without which people could succumb to life threatening diseases.
2. Monopoly and Control: Intellectual Property protection grants Exclusive rights to the owner of that
specific IP which can ultimately lead to Monopoly and Control in the market. It imposes consequential
moral concerns, primarily stemming from the extensive powers granted to the right holders.
This problem mainly arises in the cases of substantial Patent protection to the developer of a new
sophisticated technology. This can lead to Anti-competitive practices, preventing other proprietors from
utilizing, improving and building upon existing technologies.
Monopolies resulting due to Intellectual Property Rights can lead to higher prices of goods and services
making them out of reach for common people.
 PATENTS
ETHICAL PROSPECTIVES
3. Growth of Biotechnology and Bioethics: Biotech developments such as Genetic
Engineering, Manipulation of cell lines, Growth Hormones etc. have raised the concern
regarding unlimited possibilities that the science and technology holds and the various ethical
dimensions in reference to these progressions.
These inventions and modifications precisely touch the fundamental scenario of natural life such
as dignity of human body and genetic integrity of humanity.
Moreover, ethical concerns regarding the equitable access to the benefits of latest developments,
the voluntary consent and welfare of the humans involved in those projects and the protection of
environment are also a reason to worry. The major life, health and environment rights issues can
arise from biotechnical inventions.
While patents protect the invention hence, providing incentive in furtherance of science and
innovations, it also raises major ethical dilemmas such as limiting the accessibility and
availability of essential products and medicines due to their higher costs and creation of
monopoly in the market.
 PATENTS
ETHICAL PROSPECTIVES
4.Cultural and Traditional Knowledge
Traditional knowledge, held by indigenous and local communities, comprises of valuable
information regarding medicinal plants and herbs, agricultural practices, cultural expressions,
and more.
In today’s era of commercialization, traditional know-how gets patented without even proper
consent or benefit-sharing which lead to exploitation and economic injustice.
Also, it negatively impacts the conservation of natural resources and sustainable development.
 PATENTS
ETHICAL PROSPECTIVES
5.Biowar and Bioterrorism
The threat of Biowar or Bioterrorism is very real and could occur in any part of the world at any
time.
It brings no shock that the government all over the world are ever preparing for a probable
bioterrorist attack.
Bioterrorism while primarily is a social security concern, also intersects with ethical
conundrums involved with Intellectual Property Rights. Some scientific inventions especially
pertaining to biotechnological developments may have dual-use potential.
They can obviously be very useful in the agricultural, medical and pharmaceutical fields but
may also be severely misappropriated for unethical and destructive purposes such as biowars
and bioterrorism.
 MEANING OF PATENT
• Halsbury’s Laws of England: the word patent is used for denoting a monopoly right in respect of an invention.

• Telemecanique & Controls (1) Ltd. V. Schneider Electric Industries 2002 (24) PTC 632 Del (DB):

“patent created a statutory monopoly protecting the patentee against anu unlicensed user of the patented device.”

• F. Hoffman la Roche Ltd. and Another V. Cipla Limited, 2008 (37) PTC 71 (Del):

Patent is a right granted to anyone who invents or discovers a new and useful process, product, article or machine
or manufacture, or composition of matter, or any new and useful improvement of any of those. It is not an
affirmative right to practice or use the invention. Rather it is a right to exclude others from making, using,
importing or selling patented invention during its term. It is a property right ehich the state grants to inventors in
exchange with their covenant to share its details with the public.
 SCOPE / MEANING OF PATENT
• Bishwanath Prasad Radhey Shyam V. Hindustan Metal Industries (1979) 2 SCC 511:

o The object of patent law is to encourage scientific research, new technology and industrial progress. Grant of
exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new
inventions of commercial utility. The price of the grant of the monopoly is the disclosure of the invention at the Patent
Office, which, after the expiry of the fixed period of the monopoly, passes into public domain.

o Whether the manner of manufacture patented, was publicly known, used and practiced in the country or at the date of
the patent? If yes, it will negate novelty or ‘subject matter’. Prior public knowledge of the alleged invention which
would disqualify the grant of a patent can be by word of mouth or by publication through books or other media.

o Whether the alleged discovery lies so much out of the track of what was known before as not naturally to suggest itself
to a person thinking on the subject, it must not ne the obvious or natural suggestion of what was previously known.

o Was it for practical purposes obvious to a skilled worker, in the field concerned, in the state of knowledge existing at
the date of the patent to be found in the literature then available to him, that be would or should make the invention
the subject of the claim concerned.
 WHAT IS A PATENT AND HOW DOES IT HELP THE INNOVATORS?

Patent is a statutory right granted by the respective governments. It gives one the exclusive rights and bars others from
making, using, selling and importing product or process, based on the patented invention without one’s prior permission.

WHAT ARE THE CRITERIA OF PATENTABILITY?

For an invention to be patentable, the criteria of patentability are as follows:

• It should be novel: invention should not have been published or used anywhere in the world before the date of filing
the patent application in the patent office

• Must involve an inventive step: a feature of invention should involve a technical advancement as compared to existing
knowledge or having economic significance or both

• Capable of industrial application: invention is capable of being made or used in an industry

• It should not fall under the categories of inventions that are excluded from patentability under the concerned
jurisdiction
WHAT CAN BE PATENTED IN INDIA?
In India, various types of inventions are eligible for patent protection. These include:
•Products: This category covers new and inventive physical items, such as machines, devices, chemicals, pharmaceuticals, and
manufactured goods.
•Processes or Methods: Innovative methods or processes that offer a novel way of accomplishing a specific task or producing a
product can be patented. This may involve manufacturing processes, industrial methods, or new field techniques.
•Machines: Any new and useful machines or mechanical inventions, including those with innovative mechanisms or
components, can be patented.
•Manufactured Articles: Items created through a novel process or having unique features can be patented as manufactured
articles.
•Chemical Compounds: New and inventive chemical compounds, including pharmaceuticals, can be patented.
•Biotechnological Inventions: Innovations in biotechnology, such as genetic engineering, gene sequencing, and new
biotechnological processes, are eligible for patent protection.
•Software and Computer-Implemented Inventions: In some instances, software and computer-related inventions can be
patented, provided they demonstrate novelty and an inventive step.
IMPORTANCE OF PATENT REGISTRATION
Patent Registration holds significant importance for various reasons:

• Legal Protection: It provides legal protection for the patent holder. In patent infringement, the patent holder has the right to
take legal action and seek damages. Without registration, legal protection cannot be enforced.

• Transferable Rights: Patent registration allows the patent holder to sell or transfer the patent, generating revenue.

• 20-Year Validity: Once registered, a patent is legally protected for 20 years.

• Competitive Advantage: It offers a competitive edge to businesses, preventing competitors from using the patented
invention for similar products.

• Asset Creation: A patent is an intellectual property right and an exclusive asset for a business. It can be sold, transferred, or
used for commercial agreements.
 TYPES OF PATENT
These three types of patents are explained below-

1) UTILITY PATENTS

This type of patent covers processes, compositions of matter, machines, and manufacturers that are new and useful. It can also be obtained for
new improvements to existing processes, compositions of matter, machines, and manufacturers.

2) DESIGN PATENTS
Design Patent is defined as the “surface ornamentation” of an object, and it can also include the shape or configuration of an object. This type
of patent can only be obtained where the design is inseparable from the object. This type of patent only protects the object‘s appearance. If
an individual wants to protect the functional or structural features of an object, he or she must also file for a utility patent.

3) PLANT PATENTS

Plant patents are often obtained to protect new and distinctive plants. In order to obtain this type of patent are:

• the plant is should not a tuber propagated plant (i.e. an Irish potato),

• the plant is should not found in an uncultivated state, and

• the plant can be asexually reproduced.

Like Utility patents, currently, there is no provision for plant patents in India.
CRITERIA FOR FILING A PATENT APPLICATION
When applying for a patent in India, several criteria must be met:

•Novelty: The invention must be entirely new and not published in India before the patent application's filing date.

•Non-Obviousness: The invention should not be an obvious development and should be considered unexpected or
surprising by someone skilled in the relevant field.

•Industrial Applicability: The invention should be capable of practical use in an industry.

VALIDITY PERIOD OF A REGISTERED PATENT IN INDIA

A registered patent in India is valid for 20 years from when the provisional or complete patent registration
application is filed. Once this 20-year term is completed, the patent falls into the public domain
 INVENTIVE STEP
BISHWANATH PRASAD RADHEY SHYAM V. HINDUSTAN METAL INDUSTRIES

F. HOFFMANN-LA ROCHE & ORS. VS. CIPLA LTD., 2016(65)

 PATENTS
• PERSONS ENTITLED TO APPLY FOR PATENT:

Section 6 of the Patent Act, 1970 specifies the persons who are entitled to make an application for a patent for an
invention.

With subject to the provisions contained in section 134, the following persons are entitled to make an
application for a patent –

1. The application can be made by any person claiming to be the true and first inventor of the invention;

2. It can be made by any person being the assignee of the person claiming to be the true and first create in respect
of the right to make such an application;

3. It can also be made by the legal representative of any deceased person who immediately before his death was
entitled to make such an application.
 EXCEPTIONS AND LIMITATIONS
1. Government use of patent
2. Compulsory license
3. Use of inventions for defense purposes
4. Revocation for non- working of patents
5. Limitations on restored patents
PROCEDURE FOR OBTAINING PATENT PROTECTION
 PROCEDURE FOR OBTAINING PATENT

1. Submission of application-6,7,9,11
2. Publication and examination of applications-11A
3. Opposition to grant of patent to the applicant-25
4. Grant and sealing of patent- 43, 45, 46, 47.48
5. Form of application: Section 7

KIND OF SPECIFICATION
1. Provisional Specification
2. Complete Specification- Sec. 9
 PATENTS
• INTERNATIONAL INSTRUMENTS:

• PARIS CONVENTION:

• BUDAPEST TREATY

• TRIPS AGREEMENT

• PATENT CORPORATIVE TREATY

 PATENTS
• PARIS CONVENTION:

• Patents granted in different Contracting States for the same invention are independent of each other. The granting of a patent in
one Contracting State does not oblige other Contracting States to grant a patent;

• A patent cannot be refused, annulled or terminated in any Contracting State on the ground that it has been refused or annulled or has
terminated in any other Contracting State.

• The inventor has the right to be named as such in the patent.

• Each Contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which
might result from the exclusive rights conferred by a patent may do so only under certain conditions.

• A compulsory license, based on failure to work or insufficient working of the patented invention, may only be granted pursuant
to a request filed after three years from the grant of the patent or four years from the filing date of the patent application, and
it must be refused if the patentee gives legitimate reasons to justify this inaction.
The TRIPS Agreement requires Member countries to make patents available for any inventions, whether products or processes, in all fields of
technology without discrimination, subject to the normal tests of novelty, inventiveness and industrial applicability. (Article 27.1).

Three permissible exceptions to the basic rule on patentability. 1. inventions contrary to order public or morality; this explicitly includes
inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. (Article 27.2).

The second exception is that Members may exclude from patentability diagnostic, therapeutic and surgical methods for the treatment of humans
or animals (Article 27.3(a)).

The third is that Members may exclude plants and animals other than micro-organisms and essentially biological processes for the production of
plants or animals other than non-biological and microbiological processes. (Article 27.3(b)).

The term of protection available shall not end before the expiration of a period of 20 years counted from the filing date (Article 33).

Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the
invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention
known to the inventor at the filing date or, where priority is claimed, at the priority date of the application (Article 29.1).

If the subject-matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to
prove that the process to obtain an identical product is different from the patented process, where certain conditions indicating a likelihood that
the protected process was used (Article 34).
 PATENT CORPORATIVE TREATY
PCT procedure has numerous advantages for APPLICANTS, PATENT OFFICES AND THE GENERIC PUBLIC

(i) applicants have up to 18 months more than if they had not used the PCT to reflect desirability of seeking protection in foreign countries.

(ii) applicants can be assured that, if their international application meets the PCT formality requirements, it cannot be rejected on formal
grounds by any designated office during national phase

(iii) the search and examination work of patent offices in the national phase can be reduced to the international search report and the written
opinion which are communicated to national Offices together with the international application

(iv) applicants are able to access fast-track examination procedures in the national phase in Contracting States that have PCT-Patent
Prosecution Highway (PCT-PPH) agreements or similar arrangements

(v) since each international application is published with an international search report, third parties are in a better position to formulate a well-
founded opinion about the potential patentability of the claimed invention; and

(vi) for applicants, international publication on PATENTSCOPE puts the world on notice of their applications, which can be an effective means
of advertising and looking for potential licensee

(vii) Ultimately, the PCT brings the world within reach, streamlines the process of fulfilling diverse formality requirement postpones the major
costs associated with international patent protection, provides a strong basis for patenting decisions, and is used by the world's major
corporations, research institutions and universities in seeking international patent protection
 INFRINGEMENT OF PATENTS (48, 104-114)

1. Commercially uses the invention,

2. Reproduces the invention
3. Import a protected idea/ invention in India
4. Selling patented invention.
5. Offer to sell patented invention.

DOCTRINE OF EQUIVALENTS- if the infringed product/process is doing the same work in

th same way and producing the same results, it will ultimately considered as the infringement of
patented invention.
DOCTRINE OF COLORABLE VARIATIONS- what can not be done directly, should also
not be done indirectly. The practice of making minor changes to a patented invention in order to
invade patent infringement claims, Is substantially considered to be same as the patented
invention. Pfizer Inc. V. Cadila healthcare ltd 2020- anti- inflammatory drug- Celecoxib.
 INFRINGEMENT OF PATENTS (48, 104-114)

SUBJECT MATTER NOT AMOUNTING TO INFRINGEMENT

1. INDEPENDENT INVENTION
2. PATENT EXPIRATION
3. RESEARCH AND EXPERIMENTATION
4. GOVERNMENT USE
5. PRIOR USE
6. FAIR USE
7. INVALIDITY OR INFORCEABILITY OF THE PATENT
 INFRINGEMENT OF PATENTS (48, 104-114)
RX PRISM V. CANVA (DHC COMM. 573/ 2021
Delhi High Court Grants Injunction Against Canva in Patent Infringement Case by Indian Startup RX
Prism. On July 18, 2023, the Delhi High Court’s Division Bench issued an interim injunction supporting
Indian startup RxPrism in a patent infringement suit against an Australia-based company CANVA, which
offers comprehensive design solutions through its website.
A lawsuit is filed by RxPrism Health Systems (hereinafter ‘Plaintiff’) seeking a permanent injunction to
restrain the infringement of their Indian Patent. he Plaintiff developed a novel system for creating and
sharing interactive content called 'My Show & Tell’.
Canva (hereafter ‘Defendant’), a graphic design platform, offers comprehensive design solutions,
including the “Present and Record” feature for interactive presentations.
Court has considered a well-established position for analyzing the patent infringement suit, stated as
below:
a) That the claims have to be construed in a purposive manner. On the basis of the claims of the patent
specification, the Defendant’s product is to be compared for assessing infringement.
b) In the process of comparison, trivial variations would not matter, and the Court has to assess if the
Defendant’s product is producing the same effect or is ‘equivalent’, to the invention claimed and
disclosed in the Patent.
 INFRINGEMENT OF PATENTS
Court has meticulously analyzed and found that the Defendant's product does have a layered
presentation and a Picture-in-Picture (PIP) second media, which are claimed in the Plaintiff's
patent.
The Court further finds that the movement is not an essential feature of the Plaintiff’s product,
but the fact that the first and second media are integrated in a manner as to sync the audio with
the video and the image is essential.
The Court furthermore held that the functionality of the Plaintiff's product is almost identical to
the Defendant's product, even if the Call-to-Action button is not placed in a separate sandwiched
layer.
The Court further finds many of the arguments of the Defendant misplaced particularly with
respect to the Call-to-Action element which can be superimposed on any layer or even in
between layers in the Defendant's product.
The Court furthermore finds that the Defendant's attempt to highlight differences between the
claims and their product is a distraction from the fact that the comparison between the two
establishes the infringement.
NOVARTIS VS. UNION OF INDIA

Novartis vs. Union of India (2013) case involved a dispute over the patentability of Novartis’ drug,
Glivec, which is used to treat chronic myeloid leukemia and other cancers. Novartis had applied for a
patent for the beta crystalline form of imatinib mesylate, the active ingredient in Glivec.

The patent application was initially rejected by the Indian Patent Office on the grounds that the
invention did not meet the criteria for novelty and inventiveness under Indian patent law.

Novartis challenged the decision in court, arguing that the Indian patent law was too restrictive and that
the beta crystalline form of imatinib mesylate was a new and inventive form of the drug.

However, the Indian Supreme Court rejected Novartis’ arguments and upheld the decision of the Patent
Office. The Supreme Court’s decision was based on the interpretation of Section 3(d) of the Indian
Patents Act, which prohibits the grant of patents for inventions that are mere “new forms” of
existing substances unless they demonstrate a significantly enhanced therapeutic efficacy.
ERICSSON VS. MICROMAX

In 2014, Ericsson filed a patent infringement lawsuit against Micromax for infringing on its Standard
Essential Patents (SEPs) related to 2G and 3G technologies. Micromax, however, argued that Ericsson
was charging unreasonable licensing fees and that its patents were not essential to the standards, and
therefore, Ericsson was not entitled to claim royalties.

The Delhi High Court ordered Micromax to pay Ericsson an interim payment of 1.25% of the selling
price of its devices, which was later reduced to 0.8%.

However, Micromax challenged the decision in the Supreme Court of India, which ruled that the royalty
rates set by the Delhi High Court were excessive and directed Ericsson and Micromax to negotiate a
reasonable royalty rate for the use of Ericsson’s SEPs.

The two companies eventually reached a settlement, with Micromax agreeing to pay Ericsson a royalty
rate of 1.3% for its SEPs.
 COMPulSORy lICENSE (SEC 84-92)
PFIZER INC VS. DR. REDDY’S LABORATORIES LTD. (2004) US 1361

Pfizer, a pharmaceutical company, sued Dr. Reddy’s Laboratories, a fellow pharmaceutical

company in India, for violating their patent on the anti-inflammatory drug “Celebrex”.

Dr. Reddy’s Laboratories sought a compulsory license to manufacture a generic version of the
drug, claiming that it was necessary to ensure access to affordable medicines for the Indian
population.

The Delhi High Court ultimately ruled in favor of Dr. Reddy’s Laboratories and granted the
compulsory license, allowing the company to produce a generic version of the drug.
 COMPulSORy lICENSE
Bayer Corporation v. Union of India, 162 (2009) DLT 371
In 2008, Bayer Corporation (Plaintiff), was granted a patent by the Indian Patent Office for its
drug ‘Sorafenib Tosylate’ which is used to treat liver and kidney cancer. In 2012, Natco Pharma
was granted the first ever Compulsory License by the Drug Controller of India (Defendants) to
produce a generic version of this drug. Plaintiff was selling the drug at Rs. 2,80,000 per month
for a course and Defendant promised to make this drug available for Rs. 8,800 only.
Plaintiff aggrieved by the fact that a Compulsory License had been granted to Natco and moved
to the Intellectual Property Appellate Board (IPAB) for a stay on the License stating that the
License granted by the DGCI was invalid, illegal and unsustainable.
However, the IPAB rejected Plaintiff’s appeal holding that the License was granted in public
interest because of its lower prices allowing people to access it. The HC again dismissed the
petition upholding that public interest shall always be prioritised.
It was held that the objective behind the incorporation of the Patent Act is to promote invention
and safeguard the creator from infringement. DGCI could reasonably allow the
commercialization of generic drugs even if they already patented in public interest. It clarified
that by doing so, DGCI would not be supporting or committing patent infringement but on the
contrary is responsible to avoid infringement since it has proper licenses in place. It also held
that the acceptance of the generic drugs would not amount to patent infringement.
INDOCO REMEDIES LTD V. BRISTOL MYERS SQUIBB HOLDINGS
This a very recent case before the Division Bench of the Delhi High Court (court), during the prevailing
COVID-19 pandemic situation.
Bristol Myers Squibb (Bristol) was the patent holder and producer of a drug called “Apixaban”. Bristol
approached Delhi HC in 2019 seeking an ad-interim injunction against Indoco Remedies (Indoco) for
infringing their patent and producing a generic form of the drug called “APIXABID”.
In 2020, Indoco approached the court seeking permission to sell the already manufactured (58,000) strips
of the drug on grounds of ‘public interest’, especially during the COVID 19 pandemic.
Indoco submitted that the drug was important for treating COVID 19 and was much cheaper than Bristol
Myers’ drug. Bristol Myers argued that Indoco had only manufactured these strips in anticipation of the
injunction and the sale cannot be allowed due to clear infringement. They further contended that in light
of ‘public interest’ the appropriate remedy would be a compulsory license.
Court Decided that however, Indoco’s request to sell the drug was denied by the court citing that there
was no evidence for shortage of the Bristol Myers drug to allow the sale of the generic drug and also it
did not prove any overwhelming public interest reason.
The court opined that in cases of patent infringement the court generally looks at three parameters-
prima facie case, balance of convenience and irreparable loss to the person seeking interim
injunction. The Supreme Court, through many cases introduced a fourth parameter i. e. ‘public interest’,
however, that does not mean that the courts do not take into consideration the other three parameters.
Even in the face of a pandemic, the court held that it is necessary to see all three-four parameters in
conjunction.
BAJAJ AUTO VS. TVS MOTOR
The case began in 2007 when Bajaj Auto, one of India’s largest two-wheeler
manufacturers, filed a lawsuit against TVS Motor, alleging that the latter had infringed
on Bajaj’s patented technology for the DTS-i (Digital Twin Spark Ignition) engine.
The DTS-i technology, which was first introduced by Bajaj in 2003, was designed to
improve the fuel efficiency and performance of two-stroke and four-stroke engines by
using two spark plugs instead of one.
Bajaj claimed that TVS had copied this technology in its own ‘Flame’ engine, which it
launched in 2007.
In 2009, the Madras High Court ruled in favor of Bajaj, stating that TVS had indeed
infringed on Bajaj’s patent for the DTS-i technology. The court ordered TVS to stop
production and sales of its Flame motorcycle, and to pay damages to Bajaj.
TVS appealed the decision to the Supreme Court of India, which eventually upheld the
lower court’s ruling in 2010. The court held that TVS had infringed on Bajaj’s patent,
and ordered the company to pay Bajaj a royalty for every ‘Flame’ motorcycle it had sold,
as well as to stop using the DTS-i technology in its engines.
SAMSUNG VS. ERICSSON

In 2014, Samsung filed a lawsuit against Ericsson in India, claiming that Ericsson was demanding
excessive royalties for its patents related to wireless telecommunications technology.

Samsung argued that Ericsson’s royalty demands violated fair, reasonable, and non-discriminatory
(FRAND) licensing terms.

Ericsson, on the other hand, argued that Samsung was not willing to pay a fair price for using its patented
technology. Ericsson also claimed that Samsung was infringing on its patents by using its technology
without obtaining a license.

The court held that Ericsson’s royalty demands were reasonable and that Samsung had not acted in good
faith in negotiating a license for Ericsson’s patents.

The court ordered Samsung to pay Ericsson approximately $11 million in royalties and interest, and also
issued an injunction prohibiting Samsung from importing or selling any products that used Ericsson’s
technology without obtaining a license first.
 REMEDIES IN CASE OF INFRINGEMENT OF PATENT
Section 108 of Patent Act,1970 deals with the “Reliefs in suit for infringement”. The remedies for a suit filed in the
infringement of a patent can be classified into three types, they are:
1.Injunction: Injunction is of three kinds:
Temporary Injunction: It is a kind of temporary remedy that is provided before the final verdict of the case. It is
used to preserve the status quo of the patent holder. Moreover, they are likely to succeed in their lawsuit and will
suffer irreparable harm if the infringing activity is allowed to continue. The court should consider three factors
before granting temporary injunction to the patent holder-
Prime facie case, Balance of inconvenience, Irreparable loss
Permanent injunction: It is a kind of permanent remedy that is granted when the case is finally decided by the
court. It requires the infringing party to stop the infringing activity permanently. The court may also award
monetary damages, such as compensation for any profits that the infringing party has made as a result of the
infringing activity. To obtain a permanent injunction, the patent holder must file a lawsuit and prove that their patent
is valid and that it has been infringed upon by the defendant. However, obtaining a permanent injunction can be a
complex and time-consuming process, and the patent holder must have strong evidence to support their claim.
Ex-parte injunction: An ex-parte injunction is a provisional remedy that is used in urgent situations and is granted
without a hearing. It is a powerful remedy for patent infringement, but it must be used with caution, as it may result
in harm to the defendant if it is later found to be unjustified. It is typically used in urgent situations where the
plaintiff needs immediate relief and there is not enough time for a full hearing.
2.Damages: Damages is a remedy for patent infringement that compensates the patent holder for any harm that
they have suffered as a result of the infringing activity. Damages may be awarded in the form of monetary
compensation, such as compensation for any lost profits or other financial losses that the patent holder has suffered.
The main objective of damages is to compensate for the loss or injury that happened to the plaintiff.
3.Seizure, forfeiture or destruction: Courts may decree that the items determined to be infringing should be taken
into custody, forfeited, or disposed of as deemed appropriate.
 PARIS CONVENTION
There are some principal features of the Paris convention which are:
The total number of nation states party to the convention is 177, Protection against the unfair
competition and false indications, Parallel importation, Independence of parties, Right of
priority, National treatment
The substances of provisions of the convention are fall in to three main categories which are
National treatment, Priority right, common rules contents.
National treatment:
Each of the contracting state must grant the same protection to nationals of other contracting
states that it grants to its own nationals.
Under the convention, Nationals of non-contracting states are also entitled to national treatment,
if they are domiciled or have an effective and real industrial or commercial establishment in a
contracting state.
 PARIS CONVENTION
Right to priority: In the convention provides it in case of patents and utility models where they
exist and industrial designs and marks.
If an industrial property right is filed by a given applicant in one of the member countries then
the same applicant or his successor in title may file it in other member countries in a time period
(6 -12 months) and it will be considered as filed on the same date as the first country.

In right to priority they will have the priority over those applications which were filed by others
during the period of time for the same industrial design and utility model and mark and
invention. In this right its main meaning is that when there will be someone on the basis of a
regular first application is filed in one of the contracting state then the application may or within
certain period of time like 6 months for industrial designs and marks and 12 months for patents
and utility, can apply for protection in any of the other contracting states.
These subsequent applications will be regarded as if they had been filed on the same day as the
first application.
 PARIS CONVENTION
Independent of patents: the union lays down some common rules which all member states are
required to follows:
In different contracting states for the same invention are independent of each other towards
patents granted.
The granting of a patent in one contracting state does not oblige other contracting states to grant
a patent; terminated or annulled in any contracting state on the ground that it has been refused or
patent cannot be refused or annulled or has terminated in any other contracting state. As such in
the patent, the inventor also has the right to be named.
There are some principal features of the Paris convention which are:
The total number of nation states party to the convention is 177.
Protection against the unfair competition and false indications.
Parallel importation;
Independence of parties;
Right of priority;
National treatment
The requirement that an invention be non-obvious preserves the public domain by creating a patent free
zone around the existing state of art.

Usefulness is recognized as one of three pre-requisites in establishing patentability, even in

BISWANATH PRASAD RADHEY SHYAM V. HINDUSTAN METAL INDUSTRIES, it was held

that “that Section 26(1)(f) of the 1911 Act recognized the lack of utility as one of the grounds on which a
patent could be revoked.”

Thus, there must be an invention applied to produce a practical result that is, it must be capable of
industrial applicability; an invention must be a ‘new and useful’ ‘method or manner’ of manufacture.

Article 28 guarantees exclusive rights to patent owners, defined in a negative manner as the faculty to
prevent certain acts relating to the invention. The preamble, principles and objectives of the Agreement
may be used to carve out exceptions to these exclusive rights and grant compulsory licenses.
The 2005 Patents [Amendment] Act has made India fully TRIPS compliant by inaugurating an
enforceable product patents regime under Article 65(4).

Exclusive Marketing Rights which provided a means for accepting patent applications for
pharmaceutical and agricultural-chemical products until 31st December, 2004 have been
revoked under the Amendment.

The requirement of novelty is absolute and ‘inventive step’ has been redefined to inhibit
‘evergreening patents’ and computer software is deemed unpatentable per se. Immunity is yet
provided to the generic manufacture of pharmaceutical substances in the mailbox.