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CS Professional · Intellectual Property Rights - Law and Practice · Patent Documentation, Examination and Infringement

Meera Pharma holds an exclusive licence of a patent from the patentee, Dr. Rao, effective 1 April. Hari Labs infringed the patent on 15 March and again on 10 May. Meera Pharma sues Hari Labs without joining Dr. Rao. Which statement is correct?

Meera can sue only for the 10 May infringement, which occurred after the licence date. Dr. Rao must be added as a defendant unless he joins as plaintiff, and he bears no costs unless he appears and takes part in the proceedings.

  1. AMeera can sue for both infringements, as an exclusive licensee has the same rights as the patentee for all past infringements
  2. BMeera can sue only for the 10 May infringement, and Dr. Rao must be added as a defendant unless he joins as plaintiffCorrect
  3. CMeera cannot sue at all, since only the patentee can institute infringement suits
  4. DMeera can sue for the 10 May infringement and Dr. Rao must be added as a defendant who is liable for costs in any event

Explanation

Under section 109(1) an exclusive licensee may sue for infringement committed after the date of the licence. Under s.109(2) the patentee must be added as defendant unless he joins as plaintiff, and is not liable for costs unless he enters appearance and takes part. So the 15 March infringement is outside Meera's right.

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