Shielding Patent Attacks : A Peek into the Defences & Exceptions to a Patent Infringement Suit

The objective of granting patent rights is to confer monopoly rights, the rights to exclusive use and exploitation of one’s invention to the exclusion of all the others. However, this essentially requires that the rights claimed may only be realised once the claimed invention satisfies the three step test of Novelty, Inventive step and Industrial application. Any similarity or identity in the claims as made by the applicant may be challenged before the patent office in an infringement suit against such infringer. After the plaintiff establishes a prima facie case in his favour, the burden of proving non-infringement shifts upon the defendant. Moreover, in India, there is no presumption against the validity of the grant of patent by mere registration. Hence, the validity of a registered patent may be challenged by the defendant when charges of infringement have been levelled against him and thus, he may absolve himself of the liability. Hence, the two major categories of defences shall either involve a proof of non-infringement- which shall require the defendant to prove that his patent claims don’t fall within the suspicion of the claims made by the patentee in his application; or invalidity of the patent- wherein the defendant shall have to defend himself by raising doubts and questioning the grant of the patent. Although the rights of the patentee and their enforcement do find a place in almost all the legislations across the world, not much emphasis is laid on the defences that may shield the defendant in successfully combating an allegation of infringement levelled against him. Hence, the present paper is an endeavour to identify and meticulously discuss the various defences that may be availed by the defendant while he is caught up in a legal battle against the plaintiff, a brief critical analysis of the same and the reforms that may be made in order to ensure an effective and successful application by the defendant