By Shambhavi Mishra
July Headlines:
Xiaomi requires an Ericsson license to manufacture and market the phones imported into India and use Ericsson ‘s patents, according to Ericsson.
Ericsson alleged that Xiaomi was violating “standard necessary patents” (SEPs) used by mobile phone inventions in AMR, 2 G, 3 G and Edge.
A SEP is the patent which is necessary for core technologies to produce something of a certain technological quality. In this case cell phones can not be made without Ericsson ‘s proprietary GSM , GPRS, EDGE, and WCDMA technologies.
Xiaomi is reportedly using 3G- and EDGE-compliant technology on its Indian smartphones. Ericsson said he had several patents for these networking requirements and the Chinese producer needed to buy licenses or pay fees on them.
The Delhi High Court was convinced that Ericsson had made a prima facie case in favour of granting ad interim injunction and ordered Xiaomi to stop selling any of his phones / devices in India.
In its appeal against the injunction, Xiaomi argued that, when seeking an ex parte injunction order, Ericsson did not tell the court that Xiaomi had made, manufactured and sold handsets with Qualcomm chipset. It argued that it did not infringe Ericsson ‘s patents, since Qualcomm had secured a license for this proprietary technology from the Swedish company.
This meant Xiaomi would not be able to market the Redmi Note 3 G version (which uses a MediaTek chipset) in India, although the Redmi Note 4 G and all other sets based on Qualcomm chips will still be available.
1. Introduction:
The Indian Patent Act, 1970 while do not expressly specifies infringement, it can be referred to as violation of an act that leads to a breach of the patent proprietor’s rights or an infringement of the patent proprietor’s right or an infringement of the patent proprietor’s right or of any act that specifically or indirectly attempts to target the patent or the elements that led to the creation of the copyrighted product or method.
A patent grants the proprietor some proprietary privileges and for bids anyone from producing, utilizing, selling for sale or introducing the drug in the patent covered country without the Patentee explicit permission. Section 104-115 of the Indian Patent Act, 1970 describe the case related to patent violations.
2. Exception to violation or non-infringement
a. Government Abuse
Pursuant to section 47 of the Indian Patents Act, 1970, an invention can be used at any time after the patent application has been filed or after the patent has been issued by the Central Government and ‘any person approved by it.’ The proprietary drug can be manufactured or made by or on the Government’s behalf. The proprietary method can also be used by or on behalf of the government. Likewise, the proprietary method can be used for its own use by or on behalf of the State.
b. Exemption for Research:
Any person can use or make the patented invention for experimental or research purposes only, including and imparting instructions to students by, on Government’s behalf.
c. Provision of proprietary pharmaceutical goods to health institutions:
A patented invention relating to any medication or drug may be licensed by the government for the express purpose of its own use or for sale to any pharmacy, hospital or medical institution operated by or on behalf of the government.
d. Patented technology used on overseas vessels:
Patent rights shall not be deemed to be infringed if the foreign vessel / aircraft / land vehicle arrives temporarily or mistakenly in India and uses the invention in the body of the vessel / in the machinery / tack / apparatus / in its construction or service[1].
e. Provision of Bolar-like:
The act of making, building, using or selling a patented invention solely for use fairly relevant to the production and submission of knowledge needed under any law for the time being, in India or in a country other than India regulating the manufacture, creation, usage or sale of any drug shall not be regarded as infringing[2]. It requires generic drug makers to work with any proprietary medication through the production and delivery of evidence to a drug control agency or public health body without infringing the generic drug producers will sell their medicine at an reasonable price as long as the patent expires.
f. Parallel importation of:
The importation of copyrighted goods into any country by any individual approved by the patent proprietor or the patent proprietor’s licensee shall not be deemed an infringement[3].
g. Jurisdiction:
A patent owner can file a complaint in the District Court or High Court for an infringement. Nevertheless, where the claimant makes counter-claims for dismissal of the patent, the complaint along with the counter-claims is referred to the High Court for a ruling on the patent ‘s validity. Nevertheless, the IPA is vague on which courts have authority to hear the lawsuit. Pursuant to s 19 of the 1908 Civil Procedure Code, the patentee may bring the case for company violations or for personal gainful employment. The patentee court who has jurisdiction in the state where he / she lives or takes out an infringement case will also refer the infringement complaint to a court that has jurisdiction in the state where the infringement operation took place.
h. Exclusive Licensee Rights:
Pursuant to section 109 of the Indian Patent Act, both the exclusive licensee and the patent proprietor have rights to bring a patent infringement claim if the infringement act is committed after the licensing date.
3. Limitation:
The Indian Limitation Act controls the limitation time for taking in a case for violation of a patent which is three years from the violation date. Therefore it is important to note that the restriction period for the action runs from the violating act date and not from the award date. Another thing worth noting is that if the patent has ceased to have an effect as a result of the non-payment of the renewal charge, then the patent proprietor would not be able to enforce the infringing proceedings initiated between the date on which the patent ceases to have effect and the date of release of the patent restitution application.
4. Burden of Proof:
And there is an suspected violation of a patented invention in the form of a drug, the burden of proving that there has been an infringement rests on the patentee. In the case of a method patent, however, the responsibility may transfer to the claimant / infringer so that the patentee may show to the court that he / she was unable to establish the procedure used by the claimant by fair efforts.
The IPR Security Framework:
Both IPR rules are deserving of notice (excluding Laws on trademarks and designs) call for punitive action to deter violations.
5. Administrative Remedies:
When and when infringing goods are smuggled into the Indian Territory, the IP owner may contact the Customs Collector and bar those goods from entering the Indian market. The owner of the IP must state the name of Exporter, consignor, port of entry, name of the consignor run, etc., to apply this solution against itself.
Civil Remedy
A. Interim injunction
1. Interim injunctions are issued even before a full-fledged jury during the pendance of the event. Such relief is provided by a descriptive process, based on the evidence agreed and by establishing:
2. A measure of ease in favour of the complainant according to the doctrine of relative difficulties. If his / her application for a provisional injunction is not permitted the complainant will suffer irreparable harm. Generally, a temporary injunction is not issued in patent infringement proceedings usually until a full-fledged court. This is a kind of rule that the defendant / infringer counter-claims for invalidity if the patentee files a suit for the violation. Case: Novartis AG v Mehar Pharma[4] As long as the defendant issues a counter-claim for invalidity, it is impossible for the patentee to create a prima facie argument in which the court does not award the defendant any injunction.
Within Indian law, the legitimacy of a new patent is not presumptuous. The court may assume the validity of a patent in the case of patents longer than five years. In the case of patents however, where a Certificate of Validity according to s 130 of The IPA from the Supreme Court or the Expert The Board of Appeals for Copyright (IPAB), then the patentee can Request interim injunction.
B. Permanent Injunction:
Within a full jury, permanent injunctions are accorded. Unless, following a full fledged appeal , the court decides that the complainant has unjustly secured an temporary order before the jury, otherwise the court must instruct the complainant to pay the defendant for the damages that the defendant has incurred as a result of the order being imposed prior to the trial.
- S. 49 of The Indian Patent Act, 1970 ↑
- S. 107A(a), The Indian Patent Act, 1970 ↑
- S. 107A(b), The Indian Patents Act, 1970 ↑
- 2005 PTC 160 (para 28). ↑