• INTRODUCTION:

  Patents stand out as one of the most effective instruments in the innovation and IP policy toolbox.2 This is because patents allow inventors to allocate resources to research and development (R&D), with the knowledge that patents will restrict unauthorised use (‘free-riding’) of their innovative endeavours. Furthermore, through the licensing of their patents, innovators can generate revenues which can then be reinvested in new R&D efforts. This cycle of innovation can be seen, for example, in the standardisation of mobile telephony (2G to 5G), which is the pillar of India’s digital transformation. Patents, however, are only valuable if their associated rights can be adequately protected and in a timely manner. Patent owners’ abilities to enforce their rights are inhibited by unnecessarily lengthy processes. This prevents them from obtaining a return on their R&D investments in a timely fashion. When this happens, firms are likely to lose confidence in the system and heavily reduce investments in R&D. This can ultimately cause a reduction in innovative output and significant delays in growing Indian prosperity, which is enabled by fast and reliable standardised connectivity.

  This article analyses the past and present landscape of remedies for patent infringement in India, with a focus on the impact of the Intellectual Property Division (IPD) of the Delhi High Court on patent infringement proceedings.

• IP LITIGATION PRIOR TO THE ESTABLISHMENT OF THE IPD

  Traditionally, IP litigation in India was characterized by lengthy timelines, procedural delays, and multiple costly hearings. This is of particular concern given that numerous government agencies have stated that a robust IP system is crucial to India’s future innovation, competitiveness, and economic development.3 A concern surrounding these well-documented procedural delays was that they unintentionally encouraged badfaith behaviour amongst implementers. One example of this conduct is known as ‘hold-out,’ whereby implementers use delay tactics during licensing negotiations and judicial proceedings with the aim of forcing owners of standardised solutions to accept royalties far below the value of their patented technology.4 To combat the harm caused by lengthy court proceedings, the IPD has introduced several initiatives.

• FEATURES AND IMPACT OF THE IPD

  Since its inception in February 2022, the Delhi High Court IPD has introduced several judicial reforms which have significantly improved the Court’s efficiency and transformed IP lawsuits in Delhi for the better.

  The IPD is a ‘specialized court without specialized Judges.’5 IPD judges do not necessarily have practice experience in IP and can be assigned to the IPD bench on a rotating basis. That said, the IPD has gained sufficient experience to handle IP disputes with exceptional merit given the vast number of cases it has dealt with so far. The rules governing the IPD codified several existing judicial remedies available during patent disputes. Some examples are interim injunctions against an alleged infringer prior to the final judgement, or in the alternative, interim security payments for the alleged infringement of a patent.

  In Philips v OnePlus7 and Nokia v OPPO,8 the IPD held that the court has the power to order defendants to provide protem payments to patent owners, even on the first day of the trial. Pro-tem payments are made prior to the court addressing infringement, validity or licensing terms at trial.9 These payments ensure that patent owners do not suffer undue financial hardship or loss while the case is still being decided.

  The IPD has illustrated a notable ability to dispose of cases expeditiously. It inherited a case backlog of 2,000 cases, approximately 600 of which were disposed of within just the first year of the division’s operation.10 There were fewer than 60 appeals against the first 700 decisions, indicating a high level of confidence and satisfaction with the IPDs decisions.

• FUTURE DEVELOPMENT

  most illustrative of the IPD’s success is the decision to install a similar IPD in every High Court across India.11 To achieve its full potential, each IPD needs to find the appropriate speed for case progression to allow for efficient adjudication while ensuring the parties are able to fairly argue their case. In assessing the appropriate time to issue a decision, Indian IPDs may draw inspiration from similar initiatives in other jurisdictions.

  The US International Trade Commission (ITC), for example, has a strong track record in delivering sound decisions efficiently. The ITC jurisdiction includes patent disputes involving goods that are imported into the US. The typical timeline for an action is 10 months until a hearing and 16 months until a final decision.

  In Colombia, the decision to grant or refuse an application for an interim injunction range between two weeks and a month. Meanwhile, the average time for a final, first-instance ruling ranges between five and twelve months.

  Finally, in Brazil, interim injunctions can be granted by a court within a month of application, and the duration of appeal proceedings for infringement can last between 12 and 18 months on average.

  As outlined above, courts and agencies in other jurisdictions determine the grant of interim relief and conclude infringement proceedings with significant expediency. This suggests that whilst the measures introduced by the IPD have undoubtedly been highly beneficial, further efficiencies can be achieved in Indian patent litigation procedures. In this sense, the Delhi High Court has explicitly recognized that patent litigation and the granting of interim orders are concluded significantly faster in other jurisdictions.

CONCLUSION

In conclusion, the Delhi High Court’s IPD has notably improved efficiencies in the handling of patent infringement cases in India. The formalisation of procedures such as interim injunctions, interim payment orders and pro-tem payment orders seek to balance the interests of the parties in litigation. To build on these advances, further improvements could be made by adopting best practices from other jurisdictions, particularly regarding their expediting of legal processes. Such improvements could further enhance India’s attractiveness to investors, and reinforce India’s vision to become a leader in digital innovation and governance, thereby empowering its economy and society in an increasingly digital world.