Saturday, 9 July 2011

False Patent Marketing - Indian Perspective

A False Patent Marketing case (Quality Gold Sued for Patent Misuse and Misrepresentation) was recently filed in Fairfield, Ohio. The article mentions that Quality Gold has deceived the public by falsely advertising that a patent was granted when a valid patent did not exist. While there have been many such cases of "False Patent Marketing" filed in United States, Australia and Europe, it was difficult to gather information about such cases from India.*


In United States, a case of False Patent Marketing is a "fineable" offense, with a penalty of up to $500 for each decision to mark an "unpatented" product according to 35 USC 292. Unauthorized claim of Patent Rights is also a "fineable" offense in India according to section 120. I have reproduced the section 120 in its entirety from the Indian Patents Act, 1970.


"If any person falsely represents that any article sold by him is patented in India or is the subject of an application for a patent in India, he shall be punishable with fine which may extend to one lakh rupees.
Explanation 1.—For the purposes of this section, a person shall be deemed to represent—
(a)  that an article is patented in India if there is stamped, engraved or impressed on, or otherwise applied to, the article the word “patent” or “patented” or some other word expressing or implying that a patent for the article has been obtained in India;
(b)  that an article is the subject of an application for a patent in India, if there are stamped, engraved or impressed on, or otherwise applied to, the article the words “patent applied for”, “patent pending”, or some other words implying that an application for a patent for the article has been made in India.
Explanation 2.—The use of words “patent”, “patented”, “patent applied for”, “patent pending” or other words expressing or implying that an article is patented or that a patent has been applied for shall be deemed to refer to a patent in force in India, or to a pending application for a patent in India, as the case may be, unless there is an accompanying indication that the patent has been obtained or applied for in any country outside India"


A thorough search of Indian Court Cases did not reveal anything insightful into whether any judgments have been given where Section 120 of the Indian Patents Act, 1970 was cited. This indicates that till date no case has been fined in India for marketing of a product or item that included unauthorized claim of patent rights. With the recent economic boom that India has witnessed, it is difficult to accept that there have been no cases of False Patent Marketing. One of the reasons for this may be that even though false marketing may be happening, such cases never get reported as an average person in India is yet to completely understand the importance of Intellectual Property and understand the importance of IPR. But then, it may also be true that no False Patent Marketing has happened in India yet.


Readers are requested to inform if they have ever come across False Patent Marketing in India. Any help would be much appreciated.


*There is, however, one guest post on Spicy IP about False Patent Marketing.

4 comments:

  1. In addition to a fine under the patent act, a clear criminal case of cheating is made out, which can see an imprisonment or fine or both.

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  2. Thank you for sharing the information Kshtij. Are you aware of any such cases where someone has been accused of unauthorized claim of patent rights? Not necessarily under patent laws, but maybe under CPC/IPC.

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  3. Unfortunately, no.. But, we are doing some research on the same topic. Will share the finding.

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