Navigating Through Patent Infringement Exceptions: What Doesn’t Constitute an Infringement

A patent gives its holder exclusive rights over an invention – the right to make, use, sell, and import it in India for up to 20 years. But these rights are not absolute. The Patents Act, 1970 carves out specific situations where using a patented invention without the patent holder’s permission is entirely lawful. These are called exceptions to infringement, and understanding them is essential for anyone dealing with patent law in India – whether you’re a researcher, a government official, a pharmaceutical professional, or a law student.

Why do exceptions to patent infringement exist? 🔗

Patents serve a dual purpose. On one hand, they incentivize innovation by granting inventors a temporary monopoly. On the other hand, exclusive rights can conflict with public interests – think of a government needing access to a patented technology in an emergency, or a scientist needing to experiment on a drug before its patent expires. The exceptions in the Patents Act strike a balance between protecting inventors and ensuring that patents don’t become tools of obstruction. India’s approach also aligns with Article 30 of the TRIPS Agreement, which allows member countries to provide limited exceptions to patent rights, as long as they don’t unreasonably harm the legitimate interests of patent holders.

Government use: Section 47 🔗

Section 47 of the Patents Act, 1970 is the primary provision governing exceptions to infringement, and it covers two major categories: government use and research/experimentation. These statutory exceptions apply automatically to every granted patent in India – no separate approval is needed to claim them.

Use by the government for its own purposes 🔗

Under Section 47(1) and (2), the government – both Central and State – may import, make, or have made on its behalf any patented product (or a product made using a patented process) merely for its own use. This means a government department can use a patented invention for sovereign or official purposes without the patentee’s consent and without paying royalties. The key phrase here is “merely for its own use” – the exception does not extend to commercial exploitation or resale by the government.

Two landmark cases have defined the boundaries of this exception. In Garware Wall Ropes Ltd. v. A.I. Chopra and Konkan Railway Corp. Ltd., the Bombay High Court held that Section 47 applies strictly to government departments and their servants or agents – not to independent third parties who happen to supply goods to a government body. The Court drew a clear distinction between Section 47 (direct government use) and Section 100 (which allows government-authorized use by third parties, typically with royalty payment).

However, the Delhi High Court took a somewhat broader view in Chemtura Corporation v. Union of India. There, a consortium of private suppliers manufactured products based on drawings provided directly by the Railway Ministry and had no autonomy over the product design. The Court held that because these suppliers strictly followed government instructions, they fell within the scope of Section 47. The takeaway: if a third party acts purely as an agent of the government with no independent discretion, Section 47 may still protect them.

Government use for medicines and public health 🔗

Section 47(4) adds a specific and socially important dimension to government use. It allows the government to make, use, sell, or import any patented medicine, drug, or medical equipment for use or distribution in government-run hospitals, dispensaries, or other medical institutions – including those notified by the government for public health purposes. This provision is particularly significant in India’s context of ensuring affordable healthcare access, and it operates independently of the broader government use exception under Sections 100 and 101 of the Act.

Research and experimentation: Section 47(3) 🔗

One of the most broadly worded exceptions in Indian patent law, Section 47(3) permits any person – not just government entities – to use a patented product or process for the purpose of experiment or research, including for imparting instructions to pupils (i.e., teaching). This means that a researcher, academic institution, or student can work with a patented invention for genuine scientific or educational purposes without attracting infringement liability.

The scope of this provision is wide and has not yet been substantially tested in Indian courts. It is worth noting that it covers both product patents and process patents. As long as the use is genuinely for experimentation or instruction – and not a commercial exploitation dressed up as research – Section 47(3) provides a robust shield.

The Bolar exception: Section 107A(a) 🔗

Perhaps the most consequential exception for the pharmaceutical industry is found in Section 107A(a), introduced through the Patents (Amendment) Act, 2002, and subsequently broadened in 2005. Known globally as the “Bolar provision” or “regulatory exception,” this section states that any act of making, constructing, using, selling, or importing a patented invention – done solely for purposes reasonably related to the development and submission of information required under any law (in India or elsewhere) – does not constitute infringement.

In practical terms, this allows generic drug manufacturers to begin testing and developing their versions of a patented drug before the patent expires, so that they can obtain regulatory approval from the Drug Controller General of India (DCGI) and be ready to market the generic the moment the patent lapses. Without this exception, generic manufacturers would have to wait until after patent expiry to even begin the approval process – artificially extending the period of monopoly.

The Delhi High Court significantly expanded the scope of this provision in Bayer Corporation v. Union of India, holding that the exception covers not only activities within India but also exports of patented products abroad for the purpose of generating regulatory data in a foreign country. The Court further held that this right is protected under Article 19(1)(g) of the Constitution of India – the right to practice any profession or carry on any trade – and cannot be curtailed simply because the word “export” is absent from the text of Section 107A(a).

Parallel importation: Section 107A(b) 🔗

Section 107A(b) provides another significant exception: parallel importation. This provision states that importing a patented product from a person who is duly authorized by the patentee to sell or distribute the product does not amount to infringement. India follows the principle of international exhaustion – once a patented product is lawfully sold anywhere in the world with the patent holder’s consent, the patent rights in that product are “exhausted.” This means an Indian importer can bring in the product from a cheaper foreign market without infringing the patent, as long as the original sale abroad was authorized. The purpose is to check the abuse of patent rights and keep prices in check for consumers.

Use on foreign vessels: Section 49 🔗

Section 49 of the Patents Act carves out an exception that is rooted in international treaty obligations – specifically Article 5 of the Paris Convention for the Protection of Industrial Property, to which India is a party. Under this section, patent rights are not infringed when a patented invention is used in the body, engines, tackle, or accessories of a foreign vessel, aircraft, or land vehicle that temporarily or accidentally enters Indian territory – including Indian territorial waters or airspace – provided that:

• the vessel or vehicle is registered in a foreign country;
• its presence in India is temporary or accidental (not intended for commercial activity in India); and
• the patented invention is used only for the actual needs of the vessel, aircraft, or vehicle – not for manufacturing goods to be sold in India.

There is, however, an important reciprocity condition: this exception does not apply to vessels, aircraft, or vehicles from countries whose laws do not extend a similar benefit to Indian-owned vessels visiting their ports or territorial waters. The underlying logic is straightforward – since there is no commercial intention and no exploitation of the Indian market, there should be no infringement liability.

Lapsed patents and geographical limitations 🔗

Two further scenarios fall outside the scope of infringement by their very nature. First, if a patent has lapsed – either because the patentee failed to pay renewal fees or for any other reason – the invention effectively enters the public domain. Any use of that invention during the lapsed period cannot be challenged as infringement, since there are no subsisting patent rights to protect.

Second, geographical limitations matter. A patent granted in India confers rights only within the territory of India. If an invention is patented in the US or the UK but not in India, using that invention freely within India does not constitute infringement of any Indian patent. Patent rights are strictly territorial, and this is a foundational principle of the global patent system.

Why these exceptions matter in practice 🔗

These exceptions collectively prevent the patent system from becoming a vehicle for monopoly abuse. They ensure that the government can access patented technologies in the national interest, that researchers are not blocked from building on existing knowledge, that generic drugs can reach patients affordably, and that routine international transit is not inadvertently caught in patent disputes. For law students and practitioners, these exceptions are not just academic – they frequently arise as defences in patent infringement suits under Sections 104-114 of the Patents Act, and understanding them precisely can be the difference between a successful defence and a losing one.

What do you think? Given India’s status as a leading exporter of generic medicines, do you think the Bolar exception under Section 107A strikes the right balance between protecting innovators and ensuring public access to affordable drugs? And should the government use exception under Section 47 be extended more explicitly to third-party contractors who work closely with government departments?

References

1. https://ipindia.gov.in/writereaddata/portal/ipoact/1_31_1_patent-act-1970-11march2015.pdf
2. https://www.mondaq.com/india/patent/325620/exceptions-limitations-to-patent-rights-in-india
3. https://www.intepat.com/blog/section-47-of-the-indian-patents-act
4. https://www.mondaq.com/india/patent/581100/bolar-exemption-in-indian-patent-law-is-section-107aa-an-exception-or-an-enabling-provision
5. https://natlawreview.com/article/breadth-india-s-bolar-exemption
6. https://www.wipo.int/patent-judicial-guide/en/full-guide/india
7. https://www.legalservicesindia.com/article/2532/Infringement-of-Patents.html