The following is a reconstructed conversation of the kind that plays out often in an IP consultant's inbox and meeting room, when a founder becomes convinced a competitor's product is copying their patented invention. It is written as a dialogue because that is genuinely how this question usually gets worked through: not as a single legal rule, but as a sequence of questions, each one narrowing the picture until a real answer emerges.

Founder: I saw a competitor's product on the shelf last week. It looks exactly like what we patented. Do we have a case?

Counsel: Maybe. But "it looks like it" is a starting point, not an answer. Indian courts have handled this exact situation many times, from Roche's action against Cipla's Erlocip for erlotinib hydrochloride, to Merck's suit over sitagliptin against Glenmark. In both, the patentee did not walk into court on a hunch. They pieced together market evidence first, mapped it carefully to their claim language, and only then pulled the legal trigger. In the Roche matter, the Delhi High Court's Division Bench eventually did hold Cipla liable for infringing IN 196774, but it stopped short of a permanent injunction because the patent was nearing expiry, and ordered accounts instead. That outcome tells you something important: relief turns on precise claim comparison and careful timing, not on how similar two products look on a shelf.

Founder: Okay, so where do I actually start?

Counsel: Before you spend a rupee on investigation, confirm your own patent is actually enforceable today. This sounds obvious, but it gets skipped constantly.

Part One: Is Your Own Patent Actually Enforceable?

Founder: What do you mean, enforceable? We were granted the patent.

Counsel: Grant is not the end of the story. Three things need to be true right now, not just at grant.

First, term and renewals. Patents in India run for 20 years from the filing date, or from the international filing date for PCT nationals. Non-payment of annuities causes a lapse, and you cannot enforce a lapsed or expired patent, no matter how strong your claims are on paper.

Second, the actual scope of your exclusivity. Section 48 grants you the right to prevent third parties from making, using, selling, offering for sale, or importing the patented product, or from using the patented process. That is the entire legal anchor for any infringement assessment you are about to build. If the competitor's conduct does not fall within one of those five acts, there is nothing to assert yet.

Third, anticipate the defences before they are even raised. Expect the defendant to plead invalidity under Section 107, and for pharma or biotech inventions, to reach for the Section 107A "Bolar" safe harbour. The Delhi High Court has read Section 107A fairly broadly, extending it to exports made for regulatory submissions abroad, subject to what courts call a reasonable relation test. Do not mistake ordinary R&D shipments or regulatory samples for infringement without first checking the actual end-use.

Founder: So if all three of those check out, I go straight to a lawsuit?

Counsel: Not yet. Now you build the actual case.

Part Two: Building the Core, Claim-to-Product Mapping

Counsel: Indian courts decide infringement by comparing each asserted claim, element by element, against the rival product or process. This is not a vibe check. The Delhi High Court Rules Governing Patent Suits, 2022 now formally require an infringement brief with precise claim charts from the plaintiff, and correspondingly a non-infringement brief from the defendant. If you cannot map every essential element of your claim onto the accused product, your suit is going to struggle regardless of how convinced you feel.

Founder: What does "mapping every element" actually look like in practice?

Counsel: A few concrete steps tend to work well, whatever the technology:

• Buy the product from the open market yourself. Preserve the chain of custody carefully, and photograph the packaging and labelling with dates.
• For a physical device, arrange a proper teardown and lab testing. For a chemical invention, get a NABL-grade assay done. For software-embedded products, capture protocol traces or standards conformance reports rather than relying on marketing claims.
• Preserve online listings, brochures, and spec sheets as they existed at the relevant time, with dates clearly attached, since these can disappear or change later.

Founder: What if it's a process patent? I can't exactly buy a sample of their manufacturing process.

Counsel: That is precisely the situation Section 104A was written for. If the defendant's product is identical to what your patented process would produce, the court may direct the defendant to prove it used a different process, effectively shifting the burden onto them. The Delhi High Court has also signalled that these Section 104A-style disclosures can be sought at the interim stage, not just at trial, so plead it early and plead it precisely. Waiting until trial to raise this is a common and costly mistake.

Part Three: What Does Indian Case Law Actually Tell You About How Courts Judge This?

Founder: Before I spend money on all this testing, how do courts actually decide whether something infringes? Is it literal, word for word?

Counsel: No, and this matters a great deal. Indian courts adopt what is called purposive construction. In Raj Parkash v. Mangat Ram (Delhi High Court, 1978), the court looked at the "pith and marrow" of the invention and rejected non-literal, cosmetically different tweaks as a valid defence to infringement. The message for you as a founder is simple: a copier cannot escape liability just by changing a dimension or renaming a part if your claimed elements are still present in substance underneath the change.

Founder: And the Roche case you mentioned earlier, what actually happened there?

Counsel: In F. Hoffmann-La Roche v. Cipla (Delhi High Court, Division Bench, 2015), after a full trial, Cipla's Erlocip was held to infringe Roche's claim to erlotinib hydrochloride. The court ordered an account of profits rather than an injunction, because the patent's term was nearing its natural end anyway. The part that matters most for your planning is the ratio, not the headline: the court decided the case by going through claim language plus rigorous technical proof, not brand reputation or market narrative. That is exactly the discipline you need to bring to your own evidence gathering.

Founder: What about getting an urgent injunction, before a full trial? That's really what I want, to stop them selling right now.

Counsel: That is a separate, harder question, and it is fact-sensitive in a way full trials often are not. In Merck v. Glenmark (Delhi High Court, Division Bench, 20 March 2015), the court restrained the generic sitagliptin product after finding a strong prima facie case, irreparable harm, and a balance of convenience favouring the patentee. So yes, injunctions are genuinely possible where those three factors converge cleanly.

But look at the earlier stage of the Roche dispute for contrast. In the 2008 single-judge decision in Roche v. Cipla, interim relief was refused, with the court citing public interest and a credible validity challenge raised by the defendant. Interim outcomes really do swing on the specific facts in front of the judge that day, so you should be mentally prepared for either pathway rather than assuming an injunction is a formality.

Founder: Is there a risk the other side just attacks the validity of my patent instead of arguing they didn't copy it?

Counsel: Almost certainly, yes, and you should expect it as a matter of course. The Bajaj Auto v. TVS litigation is a good reminder here: Indian courts are genuinely cautious with patents at the interim stage, and there is no sweeping presumption of validity simply because a patent was granted. Your strategy has to combine robust technical testing, clean claim charts, and a real readiness to meet invalidity arguments head-on, not an assumption that grant alone settles the question.

Quick Reference Sheet

Part Four: Two Things People Keep Mistaking for Infringement

Founder: Before I go further, are there things that look like infringement but actually aren't?

Counsel: Two come up constantly.

Is experimental or regulatory use infringement? Not usually. Section 107A protects acts that are reasonably related to the development and submission of information to regulators, whether in India or abroad, and the Delhi High Court has treated exports as falling within this safe harbour when they are genuinely tied to that regulatory purpose. Before you allege infringement over what looks like a shipment or a trial batch, investigate the actual quantities involved, the destination, and the regulatory pathway being followed. A lot of founder suspicion evaporates once these details are checked properly.

Can Customs stop infringing imports of my patented product at the border? As a general rule, no. Since 2018, patents have been excluded from Customs IPR recordation in India, so border enforcement today effectively covers trademarks, copyright, designs, and geographical indications, but not patents. If your enforcement plan currently relies on Customs seizing infringing imports, that plan needs to change. Civil enforcement through the courts is the actual route available to you.

Part Five: From Suspicion to Suit, a Working Checklist

Founder: Can you just give me the sequence, start to finish?

Counsel: Here it is, in the order that actually works:

1. Confirm status. Is the patent live, are renewals paid, and is ownership correctly recorded in the register.
2. Identify the act. Pin down exactly which of make, use, sell, offer to sell, or import, under Section 48, is actually happening.
3. Collect evidence. Purchase samples, preserve invoices, capture web listings with dates, and send materials to a credible lab or technical expert.
4. Prepare claim charts. Align every essential element of your claims against the accused product, including equivalents where genuinely appropriate. If you are suing in Delhi, structure this using the Patent Suits Rules framework from the outset.
5. Screen the likely defences upfront. Anticipate invalidity grounds under Section 64, raised via Section 107, and consider whether Section 107A might genuinely apply to the other side's conduct before you commit to your pleadings.
6. For process patents, plead Section 104A specifically, to seek disclosure or a reversal of the burden of proof, rather than waiting passively for trial.
7. Choose your remedy deliberately. Interim injunction, an account of profits or damages, or inspection through a Local Commissioner for early fact-finding, each suits a different situation.

Part Six: Should You Send a Legal Notice First?

Founder: Should I just send them a warning letter before doing all this?

Counsel: Often, yes, and it can genuinely open a licensing dialogue while demonstrating good faith on your part. But a poorly drafted threat letter can backfire badly. Section 106 allows the recipient of a groundless threat to turn around and sue you instead, over the threat itself. Keep any communication strictly factual, precise to the actual claims at issue, and free of overreach or bluster. In some situations, going straight to a properly prepared suit is the safer and more credible path.

Part Seven: Where and How Do You Actually Sue?

Founder: Assuming I do go ahead, where does this case even get filed?

Counsel: Under Section 104, you sue in a court not inferior to a District Court. If the defendant counterclaims for revocation of your patent, which is common, the entire matter transfers up to the High Court. If you are filing in Delhi specifically, expect structured case management under the 2022 Patent Suits Rules, including separate briefs for claim construction, infringement, invalidity, and damages, rather than one undifferentiated pleading covering everything at once.

Founder: One last question. Is "I'm pretty sure they copied it" ever enough to get a quick injunction?

Counsel: No, and this is worth being very clear about before you set expectations internally. Courts look for a genuine prima facie case, backed by solid claim charts and credible validity, real irreparable harm, and a balance of convenience favouring you. Merck v. Glenmark shows injunctions are entirely achievable where all of that converges cleanly. The interim stage of Roche v. Cipla shows public interest considerations can cut the other way even with a strong underlying patent. The final outcome, in both directions, turned on careful, disciplined claim analysis, not on gut conviction. Build your record with that discipline from day one, and the rest of the process becomes far more predictable.

Closing Takeaways

• Treat claim charts as your north star throughout this entire process. If you genuinely cannot draw them element by element, you are not ready to file, whatever your instinct is telling you.
• For process inventions specifically, move early under Section 104A. Do not wait until trial to seek disclosure of the defendant's actual process.
• Anticipate Section 107 and Section 64 validity attacks, along with Section 107A safe harbour arguments, and address them proactively in your pleadings and evidence plan rather than reactively after they are raised.
• Stay mindful of Section 106 groundless-threats exposure whenever you send a warning notice.
• If filing in Delhi, make full use of the Patent Suits Rules, 2022 to structure your case filings and request targeted directions, including early technical primers and, where genuinely justified, inspection through a Local Commissioner.

Where This Conversation Usually Ends

Founder: So bottom line, what do I actually tell my team on Monday?

Counsel: That suspicion is not a strategy, but it is a perfectly good starting point. The next move is not emotional, it is methodical: verify that your own patent is genuinely enforceable, gather evidence that would survive testing, chart your claims meticulously against the accused product, and only then choose the right forum and the right remedy. Indian jurisprudence in this space consistently rewards precision over conviction, and that is the discipline that actually wins these cases.

This piece is written as an illustrative dialogue for general informational purposes, reflecting the author's understanding of the Indian Patents Act, 1970, the Delhi High Court Rules Governing Patent Suits, 2022, and the cited judicial decisions. It is not a substitute for specific legal advice on your own patent or a specific suspected infringement.