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

Meghna Pharma Ltd filed a patent application in India on 10 March. The application was published on 15 October of the following year. A rival, Kalyan Labs, began using the same process in the interval between 10 March and the date of publication. Under Section 45(3) of the Patents Act, 1970, what is the position regarding an infringement suit for that interval?

No suit or proceeding can be commenced or prosecuted for infringement committed before the date of publication of the application. Kalyan Labs' use before 15 October is therefore outside the reach of an infringement action, even though the patent is dated from the filing date.

  1. ANo suit or proceeding can be commenced or prosecuted for infringement committed before the date of publication of the applicationCorrect
  2. BA suit can be filed for infringement from the date of filing, 10 March
  3. CA suit can be filed only if the patent has been granted by that date
  4. DA suit can be filed only for acts after the request for examination was made

Explanation

Section 45(3) bars any suit or proceeding in respect of an infringement committed before the date of publication of the application. Kalyan Labs' use before 15 October therefore cannot found a suit. The date of filing (10 March) is the date of the patent under Section 45(1), but that does not allow suing for pre-publication acts.

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