Indian courts accept infringement cases based on industry standards

By G Deepak Sriniwas, LexOrbis
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Intellectual property laws and their relevance in the functioning of a country are recognised globally. Strong IP legislation and an equally strong IP enforcement regime help attract new investment and allow innovators to develop new technologies. This situation is particularly true in the area of patents. India’s patent enforcement regime was plagued with major impediments, with the burden of proof being one.

G Deepak Sriniwas LexOrbis律师事务所 专利诉讼业务负责人 Head of the Patent Prosecution Practice LexOrbis
G Deepak Sriniwas
LexOrbis律师事务所
专利诉讼业务负责人
Head of the Patent Prosecution Practice
LexOrbis

India’s courts shift the burden of proof onto the defendant in respect of a process patent as per the requirement of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), i.e. if either of these two conditions are met: (1) the process results in newproduct; or (2) there is substantial likelihood that an identical product is made by the process and the plaintiff has made reasonable efforts to determine the process but has failed. Until recently, the courts adhered to the traditional rule of burden of proof when it came to infringement of patent claims directed towards a product. Thus, in case of alleged infringement of a patented product, the “onus of proof” rests on the plaintiff.

Extent of proof

One of the areas that required the courts’ attention was the extent of proof needed to be submitted by the patentee as a basis for infringement contentions when enforcing patents reading upon – or covering within the scope of monopoly – industry standards. Industry standards are benchmarks that are required to be met by a product for its commercial sale.

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