International Patent Litigation in India

The following persons may institute patent infringement proceedings in India: 

1. the patentee (registered proprietor of the patent);
2. an exclusive licensee, who has the same right as the patentee to sue for infringements occurring after the grant of the licence. When an exclusive licensee sues, the patentee must generally be joined as a plaintiff or added as a defendant.
3. a compulsory licensee if the patentee, after being requested, refuses or neglects to commence proceedings within the statutory period; and
4. in certain circumstances, an assignee or other licensee where the applicable agreement or law permits enforcement. 

Yes. Under Order I Rule 3 of the Code of Civil Procedure, 1908 (CPC), multiple defendants may be joined in a single action where the right to relief arises out of the same act, transaction, or series of transactions and common questions of law or fact arise. This principle is regularly applied in patent infringement actions involving multiple alleged infringers.

Yes. Suppliers, distributors, manufacturers, importers, retailers, or other parties involved in the allegedly infringing activities may be joined as defendants if relief is sought against them and the requirements for joinder under the CPC are satisfied. The court also has the power to add necessary or proper parties to ensure complete adjudication of the dispute.

Yes. A patent infringement action is generally subject to a three-year limitation period, calculated from the date of the infringing act. Because infringement is often treated as a continuing wrong, each infringing act may give rise to a fresh cause of action, allowing recovery for acts occurring within the limitation period preceding the filing of the suit.

No. Indian law does not require a patentee to assert all potentially infringed patents in a single action. A patentee may bring separate suits based on different patents. However, where multiple patents are infringed by the same acts and the claims involve common questions of law and fact, the court may permit consolidation or joint adjudication for procedural efficiency. There is no statutory compulsory-joinder rule requiring all patents to be asserted at once.

Patent infringement and revocation proceedings in India are heard by the Commercial Divisions of the High Courts having territorial jurisdiction, in accordance with the Commercial Courts Act, 2015. Following the abolition of the Intellectual Property Appellate Board (IPAB) in 2021, revocation petitions and other patent matters previously within the jurisdiction of the IPAB are now heard by the High Courts. Indian courts may determine both infringement and validity in the same proceedings. A defendant in an infringement suit may challenge the validity of the asserted patent by way of a counterclaim for revocation, which is adjudicated together with the infringement claim to avoid inconsistent findings.

No. India is not a member of the European Union and does not participate in the Unified Patent Court (UPC) system. Patent rights in India are governed exclusively by the Patents Act, 1970, and are enforced before Indian courts.

Yes. Section 105 of the Patents Act, 1970 permits a person to institute proceedings seeking a declaration that the making, use, sale, or importation of a product, or the use of a process, does not infringe a patent. Before filing such an action, the claimant must first request a written acknowledgement from the patentee or exclusive licensee that the proposed acts do not constitute infringement, providing full particulars of the relevant acts. If such acknowledgement is refused or not provided, the claimant may seek a declaration of non-infringement before the appropriate High Court.

The time required to reach a first hearing depends on the nature of the relief sought and the workload of the relevant High Court. Applications for urgent interim relief, including preliminary injunctions, may be listed within a few days of filing. For matters proceeding in the ordinary course, the first substantive case management or hearing is typically held within several months, although timelines vary across different High Courts.

The duration of patent litigation varies depending on the complexity of the issues, the extent of evidence, expert testimony, and the court's docket. A first instance decision is commonly delivered within two to five years from the institution of proceedings, although complex cases may take longer. Commercial Courts and Commercial Divisions of the High Courts are expected to follow streamlined case management procedures designed to expedite commercial disputes, including patent litigation.

Patent disputes are decided by legally qualified judges rather than technically qualified judges. While judges of the Commercial Divisions and specialised Intellectual Property Divisions of certain High Courts have developed substantial experience in intellectual property matters, they are not required to possess formal scientific or technical qualifications. Courts frequently rely on expert witnesses and technical evidence to assist in determining complex scientific and technological issues.

No. Indian courts are not required to stay patent infringement or revocation proceedings because of pending opposition or revocation proceedings before the European Patent Office (EPO) or other foreign patent offices. Since patent rights are territorial, Indian courts determine the validity and infringement of Indian patents independently. Although developments in foreign proceedings may occasionally be considered persuasive in appropriate circumstances, they are not binding and do not ordinarily justify a stay of Indian proceedings.

Yes. Any person interested, or the Central Government, may file a revocation petition seeking the invalidation of a patent under Section 64 of the Patents Act, 1970, without waiting to be sued for infringement. Following the abolition of the IPAB, such revocation petitions are filed before the jurisdictional High Court. A validity challenge may also be raised as a counterclaim in infringement proceedings.

Indian law does not provide a standalone cause of action to obtain a court-determined FRAND licence. However, disputes concerning the licensing of standard-essential patents (SEPs), including allegations relating to FRAND obligations, may be brought before the civil courts. Separately, the Patents Act, 1970 provides a statutory mechanism for compulsory licences under Section 84, under which any person interested may apply for a compulsory licence after the prescribed statutory period if the statutory conditions are satisfied, including where the reasonable requirements of the public have not been met, the patented invention is not available at a reasonably affordable price, or the invention is not worked in India. The Controller of Patents has jurisdiction to decide applications for compulsory licences.

Yes. In litigation involving standard-essential patents, an alleged infringer may rely on the patentee's commitment to license the patent on fair, reasonable, and non-discriminatory (FRAND) terms as a defence or as part of its response to a claim for injunctive relief. Indian courts have recognised that the conduct of both the patentee and the implementer is relevant in determining whether an injunction should be granted. Where the court concludes that the patentee has failed to comply with its FRAND obligations, it may decline or tailor injunctive relief and instead direct the parties to negotiate on FRAND terms or impose interim arrangements, such as payment of interim royalties. Indian courts have determined interim and India-specific royalty rates in SEP disputes; however, they have not yet established a comprehensive practice of determining binding global FRAND licence rates. The jurisprudence in this area continues to evolve.

Yes. Expert witnesses is commonly used in Indian patent litigation, particularly on issues such as claim construction, validity, infringement, technical functionality, and the state of the prior art.

• Party-appointed experts: Parties are entitled to engage and present their own expert witnesses. Their evidence is usually submitted through affidavits, and they may be cross-examined by the opposing party.
• Court-appointed experts: Indian courts also have the power to appoint independent scientific advisers or experts to assist the court on technical matters. Under Section 115 of the Patents Act, 1970, the court may appoint an independent scientific adviser to provide technical assistance. 

In practice, party-appointed experts are more common, while court-appointed scientific advisers are used in particularly complex cases.

Yes. Indian courts permit disclosure and discovery of documents. A party may be required to disclose:

• Documents on which it relies.
• Documents supporting or adversely affecting its case.
• Technical documents, laboratory records, manufacturing records, product specifications, testing reports, licensing agreements, and sales records relevant to infringement or damages.
• Prior-art documents and prosecution-related materials where relevant. 

The disclosure process is governed principally by the Code of Civil Procedure, 1908 and, in commercial disputes, by the Commercial Courts Act, 2015, which imposes stricter disclosure obligations. The court plays an active supervisory role. It may order production of specific documents, determine the scope of disclosure, resolve privilege disputes, and limit disclosure to documents that are relevant and proportionate. 

Yes. Indian courts provide several pre-trial and interim mechanisms to preserve evidence. These include:

(a) Anton Piller-type orders (Search and Preservation Orders)

Indian courts may grant ex parte search-and-seizure orders, commonly referred to as Anton Piller orders, where there is a risk that evidence may be concealed, destroyed, or removed. Such orders may permit inspection of premises; preservation of documents; imaging or copying of electronic data; seizure of infringing goods in appropriate circumstances. 

(b) Local Commissioner Orders

A frequently used remedy in patent and other intellectual property disputes is the appointment of a Local Commissioner under the CPC.

The Local Commissioner may:

• Enter premises;
• Inspect manufacturing facilities;
• Inventory products;
• Collect samples;
• Secure documents and electronic evidence;
• Prepare a report for the court.

(c) Pre-suit Preservation of Evidence

In urgent cases, courts may grant ex parte relief before the defendant is heard where there is a credible risk of destruction of evidence.

In India, appeals from decisions of a Single Judge of a High Court in patent infringement or revocation proceedings generally lie to a Division Bench of the same High Court, subject to the applicable procedural rules and the maintainability of an intra-court appeal. Decisions rendered by a Division Bench may be challenged before the Supreme Court of India by way of a Special Leave Petition under Article 136 of the Constitution of India, subject to the Supreme Court granting leave. Certain orders, including interlocutory orders, may also be appealable where specifically provided by statute or procedural law.

An appeal may be brought on both questions of law and fact, depending on the nature of the appeal and the order under challenge. Common grounds include errors in the interpretation or application of patent law, incorrect appreciation of evidence, procedural irregularities, improper exercise of judicial discretion (particularly in relation to interim injunctions), or findings that are contrary to the evidence on record. Appellate courts generally accord deference to factual findings unless they are shown to be perverse or unsupported by the evidence.

The timeline for appeals varies significantly depending on the court, the complexity of the dispute, and the case load. A first appeal before a Division Bench of a High Court may typically take between one and three years for disposal, although matters involving interim relief may be heard more expeditiously. Proceedings before the Supreme Court may take an additional two to four years or longer, depending on the nature of the issues involved and the Court's docket.

No. Filing an appeal does not automatically suspend the operation or enforcement of the first instance judgment or order. A party seeking to prevent enforcement must obtain a stay from the appellate court. The grant of a stay is discretionary and depends on factors such as the existence of a prima facie case, the balance of convenience, the likelihood of irreparable harm, and the overall interests of justice.

Legal costs in Indian patent litigation vary considerably depending on the complexity of the technology, the number of hearings, expert evidence, and the forum. For a fully contested patent infringement action through trial and final judgment before a High Court, legal fees typically range from approximately INR 50 lakh to INR 3 crore or more. Simpler matters or disputes resolved at an earlier stage may involve significantly lower costs, while highly complex, multi-patent or pharmaceutical disputes may exceed this range.

The legal costs of an appeal are generally lower than those incurred at first instance, particularly where the appeal is based primarily on the existing record. Depending on the complexity of the issues and the appellate forum, costs typically range from approximately INR 20 lakh to INR 1 crore before a High Court or the Supreme Court, although particularly significant or complex appeals may involve higher expenditure.

Yes. Indian courts have the discretion to award costs to the successful party under the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015. Courts increasingly award realistic costs in commercial disputes, including patent litigation, taking into account factors such as the conduct of the parties, the reasonableness of the costs incurred, and the outcome of the proceedings. However, full indemnity recovery remains uncommon, and courts retain broad discretion regarding both the quantum and apportionment of costs.

The principal forms of alternative dispute resolution in India are mediation, arbitration, conciliation, and negotiated settlement. Mediation is increasingly encouraged by courts and is commonly used in commercial disputes, particularly where the parties have an ongoing commercial relationship or the dispute concerns licensing or contractual obligations. Arbitration is available for disputes arising from contractual arrangements, such as patent licence agreements or technology transfer agreements, but issues concerning the validity or revocation of patents are generally considered matters in rem and are therefore not arbitrable. Patent infringement claims involving public rights may also be unsuitable for arbitration, although related contractual disputes can be resolved through arbitral proceedings.

Yes. Under the Commercial Courts Act, 2015, pre-institution mediation is mandatory for commercial disputes that do not seek urgent interim relief. In cases where urgent interim relief is sought, the suit may be instituted directly before the court. Additionally, courts have the power under Section 89 of the Code of Civil Procedure, 1908, to refer appropriate disputes to mediation, conciliation, arbitration, or other recognised ADR mechanisms where settlement appears feasible. In practice, courts increasingly encourage mediation at various stages of commercial litigation, including patent disputes where the nature of the dispute permits settlement.

Yes. Under the Commercial Courts Act, 2015, pre-institution mediation is mandatory for commercial disputes that do not seek urgent interim relief. In cases where urgent interim relief is sought, the suit may be instituted directly before the court. Additionally, courts have the power under Section 89 of the Code of Civil Procedure, 1908, to refer appropriate disputes to mediation, conciliation, arbitration, or other recognised ADR mechanisms where settlement appears feasible. In practice, courts increasingly encourage mediation at various stages of commercial litigation, including patent disputes where the nature of the dispute permits settlement.

Damages are intended to compensate the patentee for losses suffered as a result of the infringement. Courts may award either compensatory damages or, at the patentee's election, an account of the infringer's profits, but not both. Damages are assessed based on the evidence presented, including loss of sales, price erosion, loss of market share, or other demonstrable commercial harm. Where damages are assessed on the basis of a reasonable royalty, the rate is generally determined by reference to factors such as existing or comparable licence agreements, prevailing industry licensing practices, the commercial value and importance of the patented invention, the scope and duration of the patent rights, and the nature and extent of the infringing use. Indian courts have adopted a flexible, fact-specific approach, and there is no prescribed statutory methodology for calculating reasonable royalties.

Yes. Where liability has been established but the quantum of damages or profits cannot be determined on the available evidence, the court may direct a separate enquiry into damages or an account of profits. Such enquiries may involve the production of financial records, expert evidence, and further documentary disclosure to quantify the patentee's loss or the infringer's profits. Whether a separate enquiry is ordered depends on the circumstances of the case and the sufficiency of the evidence already on record.

Indian patent law does not expressly provide for enhanced or punitive damages solely on the basis that infringement was deliberate or wilful. However, the conduct of the infringer may influence the court's exercise of discretion in awarding relief. In appropriate cases involving dishonest, mala fide, or egregious conduct, courts have awarded exemplary or punitive damages, although such awards remain relatively uncommon in patent litigation. Wilful infringement may also be relevant in determining the quantum of costs and the grant of equitable relief.

Yes. Indian courts have the power to order delivery up, seizure, destruction, or disposal of infringing products and materials used in their manufacture as part of the final relief granted in a patent infringement action. Although Indian patent legislation does not expressly provide for product recall orders in the same manner as some other jurisdictions, courts exercising their equitable and inherent powers may direct the withdrawal or recall of infringing products from the market where appropriate. There is no prescribed statutory limitation period specifically governing such orders; rather, the availability and scope of the remedy depend on the facts of the case and the court's assessment of what is necessary to effectively prevent continuing infringement.

Yes. Indian courts have the power to grant preliminary (interim) injunctions in patent infringement proceedings under the Code of Civil Procedure, 1908. To obtain such relief, the plaintiff must establish: (i) a prima facie case on both the validity of the patent and infringement; (ii) that the balance of convenience favours the grant of the injunction; and (iii) that the plaintiff is likely to suffer irreparable harm that cannot be adequately compensated by damages if the injunction is refused. In patent cases, courts also consider factors such as the strength of the patent, whether its validity has been previously tested or challenged, any delay in seeking relief, public interest considerations, and the impact of the injunction on the parties and third parties.

Yes. Indian courts may grant an ex parte (without notice) interim injunction where the circumstances justify urgent relief and where giving prior notice to the defendant would defeat the purpose of the application, for example, by enabling further infringement or destruction of evidence. Such orders are exceptional and are typically granted only where the plaintiff demonstrates urgency, a strong prima facie case, and the likelihood of irreparable harm. The defendant is ordinarily given an opportunity to contest the injunction at the earliest subsequent hearing.

The timeframe depends on the urgency of the matter and the court's docket. In urgent cases, particularly where ex parte relief is sought, an application for a preliminary injunction may be heard and decided within a few days of filing. Where notice is issued to the defendant, interim applications are commonly heard within few weeks to few months. Commercial Divisions of the High Courts generally endeavour to hear applications for interim relief on an expedited basis.

Yes. Orders granting or refusing interim injunctions are generally appealable under the Code of Civil Procedure, 1908. However, filing an appeal does not automatically suspend the operation of the injunction. The appellant must separately obtain a stay or modification of the impugned order from the appellate court. Pending such relief, the injunction remains binding and enforceable.

Indian courts do not ordinarily require a patentee to provide security or a bond as a condition for the grant of a preliminary injunction. However, the court has discretion to impose appropriate terms where the circumstances warrant, particularly if necessary to protect the interests of the defendant. Such orders are relatively uncommon in patent litigation and are made on a case-by-case basis.

Yes. A preliminary injunction is an interim measure intended to preserve the status quo pending adjudication of the dispute. A final or permanent injunction may be granted only after the court has determined the merits of the case, including issues relating to patent validity, infringement, and any available defences. The final decision follows the completion of pleadings, evidence, and substantive hearings, unless the matter is resolved earlier by settlement or other disposition.

Cross-border injunctions are not generally available in Indian patent litigation. Indian courts ordinarily grant relief only in respect of acts of infringement occurring within the territorial jurisdiction of India or affecting Indian patent rights. Since patent rights are territorial in nature, Indian courts do not typically restrain infringement of corresponding foreign patents or issue injunctions with extraterritorial effect, except to the limited extent necessary to restrain conduct occurring within India that infringes Indian patent rights.

Yes. Indian courts recognise the power to grant anti-suit injunctions in appropriate cases, although such relief is granted sparingly and in exceptional circumstances. An anti-suit injunction may be issued to restrain a party from pursuing parallel proceedings before a foreign court where the continuation of those proceedings would be oppressive or vexatious, would defeat the ends of justice, or would undermine the jurisdiction of the Indian court. In patent disputes, Indian courts have also considered anti-suit and anti-anti-suit injunctions in the context of global standard-essential patent (SEP) licensing disputes, balancing principles of comity, fairness, and the efficient administration of justice. The grant of such relief remains highly fact-specific and discretionary.