Innovation thrives on ideas—but true protection begins when those ideas are legally safeguarded. Imagine investing months of effort, creativity, and resources into developing a unique product, only to find an identical version sold by someone else online. This is where understanding the enforcement of your patent rights becomes crucial. When your patented product is copied, Indian patent law provides a clear and powerful path to assert ownership, prevent further infringement, and seek compensation. This guide walks you through the exact steps every patent holder should take to protect their innovation—from confirming your rights to securing injunctions under the Indian Patent Act, 1970.
Understanding IP is not just for lawyers and corporates; it is for anyone who dares to create.
Imagine scrolling through an e-commerce platform one morning and spotting a product that looks exactly like the one you invented. Same design, same features, except the seller is someone you’ve never heard of. Panic sets in. You invested money in developing the invention, spent months navigating the patent process, and finally secured a granted patent. But now a copycat is openly entering your market.
The good news?
If your patent is granted and in force, Indian patent law gives you powerful tools to stop infringement, demand damages, and legally block unauthorised use. The Indian Patent Act, 1970, is structured to protect true innovators. The key is knowing what steps to take and which legal provisions to rely upon.
1. Start by Confirming Your Patent Rights (Section 48 & Section 53 of the Indian Patent Act, 1970)
Before taking action, it is essential to verify that your patent is granted and currently in force. Under Section 48 of the Indian Patent Act, a granted patent provides the patentee with the exclusive right to prevent third parties from making, using, offering for sale, and importing the patented product or using the patented process without permission. These rights are enforceable only once the patent is formally granted.
Additionally, ensure that the patent is valid for enforcement by checking renewal status under Section 53, which deals with the term of the patent and annual renewal fee requirements. A lapsed patent cannot be enforced unless restored, and even restoration (Section 60) does not allow enforcement for the period during which the patent has expired.
2. Evaluate Whether Actual Infringement Has Occurred (Sections 104–107)
To prove infringement, the product created or sold by the third party must fall within the scope of your granted claims. Patent enforcement relies on claim interpretation, and Indian courts follow established judicial principles to determine whether an accused product embodies the essential features of the claims.
Under Section 104, any infringement suit can be filed only before a District Court or High Court having appropriate jurisdiction. During this stage, also prepare for potential defenses the infringer may use under Section 107, such as claiming that your patent is invalid. They may argue a lack of novelty, non-obviousness, insufficient description (Section 64 grounds for revocation), or other statutory limitations.
3. Gather and Preserve Evidence Before Acting (General Litigation Requirement)
Evidence is the backbone of any infringement suit. Before issuing legal notices or filing a claim, collect strong documentation such as screenshots, catalogues, invoices, unboxing videos, email communication, product samples, marketplace listings, or any publicly disclosed materials. Evidence of availability, sale, and commercial use significantly strengthens your case during interim injunction hearings.
4. Consider Sending a Cease-and-Desist Notice
(While keeping Section 106 in mind, Groundless Threats) Although the Patent Act does not mandate sending a legal notice before initiating litigation, issuing a well-crafted cease-and-desist letter often helps resolve disputes without going to court. The notice should identify the patent, explain the infringing features, demand discontinuation of the infringing activity, request accounting of profits, and specify a deadline for compliance.
However, Section 106 warns that making groundless threats of infringement proceedings may expose the patentee to legal action. Therefore, ensure the allegation is substantiated and supported by a claim chart or technical comparison.
5. File a Suit for Patent Infringement (Sections 104, 108)
If the infringer refuses to comply, the next step is filing a formal patent infringement suit. Under Section 104, such suits may only be filed before a competent court (typically the District Court or High Court). Reliefs available to patentees are covered under Section 108, which include:
- Permanent injunction preventing further infringement
- Damages or account of profits (you may choose one)
- Seizure and destruction of infringing goods and materials
- Delivery-up of infringing articles
These remedies aim not only to stop the infringement but also to ensure financial compensation for losses incurred.
6. Seek Urgent Relief Through Interim or Ex-Parte Injunctions (CPC + Section 108)
In fast-moving markets, delaying enforcement can cause irreparable harm. Indian courts have the authority to issue interim injunctions, including ex-parte injunctions, to immediately restrain infringers even before hearing their defense. Although this power arises from the Civil Procedure Code (CPC), courts interpret it alongside Section 108 to grant temporary relief.
Courts evaluate:
- Prima facie case (clear infringement, validity of patent)
- Balance of convenience
- Irreparable harm
Well-established precedents such as F. Hoffmann-La Roche v. Cipla, Ericsson v. Intex, and Merck v. Glenmark illustrate the courts’ willingness to grant interim injunctions when strong evidence is presented.
7. Prepare for Possible Patent Revocation Claims (Sections 64, 107, 107A)
During litigation, infringers often challenge the validity of the patent. Under Section 107, they may use any grounds of revocation listed in Section 64, including prior publication, lack of novelty, obviousness, wrongful obtaining, insufficient disclosure, lack of industrial application, or non-patentable subject matter.
Additionally, Section 107A provides “Bolar exceptions,” allowing production of patented products for regulatory purposes without constituting infringement.
Understanding these sections helps you anticipate arguments and strengthen your legal strategy.
8. Understand the Key Judicial Precedents Supporting Enforcement
8.1 Hoffmann-La Roche Ltd. v. Cipla Ltd. (2008 & 2015)
This is one of the most important Indian patent cases. Roche had a patent for an anti-cancer drug (Erlotinib). Cipla launched a generic version before expiry, and Roche sued.
The courts laid down several key principles:
Interim Injunction Test in Patent Cases:
The court explained how to decide whether a temporary injunction should be granted. The patentee must show a prima facie valid patent, clear evidence of infringement, a balance of convenience, and risk of irreparable harm.
Public Interest Considerations:
Since the case involved a life-saving medicine, the court said public interest (availability and affordability of drugs) must also be considered before stopping a generic manufacturer.
Validity Challenges:
Cipla attacked the validity of Roche’s patent. The court clarified that in an interim stage, if the defendant raises a “credible challenge” to the patent’s validity, it can influence whether an injunction should be granted.
This case became a benchmark for how Indian courts handle interim injunctions and validity challenges in patent disputes.
8.2 Merck Sharp & Dohme v. Glenmark Pharmaceuticals (2015)
This case involved Merck’s patented diabetes drug “Sitagliptin.” Glenmark launched its own version before patent expiry.
Key outcomes:
Permanent Injunction Granted:
After examining the claims and technical evidence, the Delhi High Court found that Glenmark’s product fell within the scope of Merck’s patent and granted a permanent injunction.
Importance of Claim Construction: The court emphasised that the wording of the claims is crucial. If the accused product contains all essential elements of the claim, infringement is established.
Reinforced Strong Patent Rights: The judgment showed that Indian courts are willing to grant strong final remedies when the patentee proves infringement and the patent survives validity challenges.
8.3 Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries (1978)
This is an older but very significant Supreme Court decision. It is frequently cited even today for determining inventive step.
Key contributions of the case:
Definition of Inventive Step:
The Supreme Court held that an invention must show “technical advancement” or “economic significance” and must not be obvious to a person skilled in the art.
Test for Obviousness:
The court explained that simply making a workshop modification or using common knowledge is not enough to qualify as an invention.
Foundational Case:
This judgment forms the basis for how Indian courts examine novelty, inventive step, and validity in all patent enforcement matters.
8.4 Telefonaktiebolaget LM Ericsson v. Intex Technologies (2015)
This was the first major case in India involving Standard Essential Patents (SEPs) related to telecom technologies like 2G, 3G, and AMR.
Key factual outcomes:
Finding of Infringement:
The Delhi High Court held that Intex had infringed Ericsson’s SEPs after an extensive technical comparison.
Interim and Final Relief Principles:
The court reaffirmed that injunctions can be granted when the patentee shows strong evidence of infringement and the defendant cannot raise a strong validity challenge.
FRAND Licensing Issues:
The court discussed fair, reasonable, and non-discriminatory (FRAND) licensing obligations for SEPs, which became influential for later SEP disputes in India.
Even though this case involved telecom patents, the principles of how courts examine infringement, evaluate evidence, and balance equities are relevant across all patent enforcement actions.
9. Conclusion
Having a patent is only the first step; enforcing it is equally important. When someone copies your patented product, your response must be swift, strategic, and evidence-backed. The Indian Patent Act, 1970, provides a complete enforcement framework through Sections 48, 53, 104, 108, 106, 107, 107A, 64, and several related provisions. Armed with strong evidence, a clear claim chart, and the right legal strategy, you can protect your innovation and maintain your competitive advantage.
Here’s what it all comes down to:
Verify your rights → Collect evidence → Issue notice → Seek injunction → Enforce decisively.
Because your patent is a shield, but only if you use it.
At R K Dewan & Co., we have been at the forefront of intellectual property protection for over eight decades, helping innovators, entrepreneurs, and businesses safeguard what truly matters—their ideas. As patent law firm in India, our team of experienced patent attorneys and litigators provides end-to-end support in patent filing, prosecution, enforcement, and litigation. Whether you are facing infringement issues or seeking proactive IP strategies, we combine legal precision with technical depth to deliver practical, result-driven solutions.
Connect with our experts today and ensure your innovation gets the protection it deserves.
