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What are the Exceptions of Patent Infringement?

What are the Exceptions of Patent Infringement
| Updated: Oct 18, 2021 | Category: Patent

At present, to advance the development of the country, IPR (Intellectual Property Rights) plays an essential role. Despite such importance of Intellectual Property Rights, few people still see it as a hindrance in the development of innovation & advancement. The different types of IPRs (Intellectual Property Rights) are repeatedly discussed in debates and general conversations on such varied topics as entertainment, medical devices, agriculture, industrial policy, mass media, biotechnology, food security, etc. The existence of IPRs (Intellectual Property Rights) in the areas of human development has made it basic to avail the benefits and hindrances it conveys. For this reason, nations adopted some exceptions to Patent Rights and other related rights to use Intellectual Property Rights as a tool for their viable development. In this blog, we will discuss different exceptions of Patent Infringement.

However, after signing the World Trade Organisation’s Agreement on TRIPS (Trade-Related Aspects of Intellectual Property Rights), which permits member nations to provide more extensive protection of Intellectual Property (IP), the limitations & exceptions of Patent Infringement or Patent Rights in India undergo something of an evolution. The Exceptions to Rights Conferred has been registered as Article 30 of TRIPS. It gives that Member Nations may provide limited exceptions to the Patent Rights, provided that such exceptions don’t sensibly conflict with a normal exploitation of the Patent and don’t unreasonably prejudice the legal interest of the Patent holder, taking account of the legal interests of 3rd parties.

What is a Patent?

Before we go through different exceptions of Patent Infringement, let’s understand the meaning of Patent. A Patent gives special rights to the Patent owner to use, manufacture, import, and sell the products into the country where the Patent is granted. Any infringement to such rights without the consent of the Patent owner would cause Patent Infringement. But, there are certain exceptional acts where the use of the patented invention without the approval of the Patent owner doesn’t comprise infringement. Section 107 of the Indian Patents Act details such exceptions of Patent Infringement.

Different Types of Exceptions of Patent Infringement

Following are the different types of Exceptions of Patent Infringement:

  • Scientific or Experimental Use Exception: This exception is incorporated under Section 47 of the Act. Under Sub-section 3 of the said Section, the issuance of a Patent is subject to the situation that any process or products, regarding which the Patent is granted, may be used or made by any individual for the purpose simply of experiment or research comprising the giving instructions to eyes.
  • Private  & Non-Business Use Exception: The exclusive rights provided by a Patent don’t allow private user/monopoly over commercial activity. Suppose a Patent owner is neither using nor selling the invention for profit. In that case, the Government has the authority to issue a license known as Compulsory License to a 3rd party to use the patented invention so as to limit the Patent owner’s rights for the aim of preventing the misuse or abuse of the exclusive rights by the property owner and to prevent the harsh effect of such action on the public. The idea of a Compulsory License comes into play when the patented innovation is not commercialised in India, or the invention or innovation is not available to the general public at affordable prices, or the innovation is not produced in the necessary amount.
  • Prior-Use or Regulatory-Use Exemption: The Patent Rights give the economic incentives to innovate, but on the other side, the rights they grant result in monopoly and excessive pharmaceutical products. Accordingly, the Indian Patents (Amendment) Act, 2005 incorporated the prior or regulatory-use exemption under Section 107A to provide a Trade-off between incentives to the innovators or creators and limited client access and costs.

This exemption is also called as Bolar Provision and is one of the legally created exemptions of Patent Infringement or Patent Rights that permits the manufacturers or producers of generic drugs to undertake steps viably concerning the development & submission of information required for getting marketing approval anywhere in the world concerning patented product without the approval of the Patent owner. This provision allows the general manufacturers or producers to market and manufactures their products before the Patent gets expires. In any condition, the exemption doesn’t take into consideration the usage of safeguarded medication to get the permit to produce and distribute the generic medication before the expiry of the Patent term.

  • Exhaustion of Patent Rights: The Doctrine of Exhaustion refers to the exhaustion of the advantages of the Patent owner once the licensed creation or innovation is sold with no limitation. As per this Doctrine, the main unobstructed sale of a safeguarded product reduces the Patent owner’s authority over that specific product.

The explanation behind the exhaustion of the rights upon the sale of the safeguarded product is that, by the first sale of the Patent creation, the Patent owner has legitimately utilised the rights to prevent others from utilising, offering, making, or selling for commercialisation in the Patent territory issued to bringing innovation or invention into the area of Patent issue and hence has received the rewards provided by a Patent.

  • Aircraft, Land Vehicles, or Foreign Vessels Exception: According to Article 5 of the Paris Convention, exclusive rights conferred by a Patent shall not broaden to the use of the patented invention on board of vessels when such vessels accidentally or temporarily enter the waters, given that the invention is used exclusively for the requirements of the vessel.

As this exception is not optional for the nation’s party to the Paris Convention, the Indian Patents Act, to comply, incorporated the proposed exception under Section 49. As per the said Section, the Patent Rights are not violated when the Patent invention is used for the requirements of foreign vessels, land vehicles, or aircraft and other accessories thereof, when such vessels, aircraft or land vehicles temporarily/accidentally comes into India.


So after discussing different exceptions of Patent Infringement[1], it is concluded that a Patent on an invention presents exclusive rights to the Patent owner to prevent others from the offering, making, utilising for commercialisation in the area of Patent issued or bringing development into the Patent domain given for time duration and in return of publication of creation to the ordinary society. This may have induced imposing a single man business model & uncompetitive practices. Hence, essential arrangements on exceptions were developed for the reasonable advancement & development of the countries.

Read our article:All You Need to Know About Prior Art Search

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A legal writing enthusiast, a wanderer, and a zealous reader. After gaining a lot of knowledge about the diverse legal topics and developing research skills, Karan joined the league of legal content writers to deliver quality-rich blogs.

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