Patent processes: Who carries burden of proof?

By Swati Gupta, LexOrbis
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The burden of proof is defined in section 101 of the Indian Evidence Act, 1872, (act) thus: “whoever desires any court to give judgment … dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”. Accordingly, the onus of adducing evidence to prove the facts on which allegations are based lies on the plaintiff. Similarly, the burden of proof in patent infringement litigation lies on the patentee or plaintiff to adduce factual evidence that the patent has been infringed. However, if the subject matter of a patent is a process, and the patentee or person deriving title or interest is able to prove that the infringed product is identical to the product directly obtained by the patented process the burden of proof may shift to the defendant to prove that the process used by him is different from the patented process.

Patent
Swati Gupta
Associate
LexOrbis

In Farbewerke Hoechst etc v Unichem Laboratories and ors the Bombay High Court held that the burden of proof in the process patent is based on section 106 of the act which provides that “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”.

Therefore, if the process by which the product is obtained is especially within the knowledge of the infringer or defendant it is impossible for the plaintiffs to know exactly how the product has been obtained by the defendants. Thus, the burden of proving the process used by the defendant to make the infringing product lies on him.

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Swati Gupta is an associate at LexOrbis.

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