It is often assumed that the day a patent certificate arrives, competitors must stop overnight. Commercial teams start drafting press notes, procurement asks for cease-and-desist letters, and sales expects instant market exclusivity. The legal position is more nuanced. Indian law gives powerful rights on grant, and courts do issue swift injunctions in deserving cases, yet there are statutory carve-outs and a clear test that must be met before anyone can be restrained. This article explains what changes on grant, how soon a patentee can act, what exceptions apply, and the practical steps that make an immediate injunction more likely.
What rights vest on grant, in statutory terms
On grant, Section 48 confers the patentee’s exclusive right to prevent others, without consent, from making, using, offering for sale, selling or importing the patented product, or using the patented process and dealing in the directly obtained product. These rights operate “subject to” other provisions, including Section 47 conditions. Infringement suits, burdens and remedies are then governed by Sections 104, 104A, 108 and 111.
Can a patentee stop others immediately after grant?
Not automatically. An opposing party can be stopped only if a court grants an injunction. Indian courts apply the settled three-part test for interim injunctions, namely a prima facie case, balance of convenience, and irreparable harm, drawn from Supreme Court guidance in Wander Ltd v Antox India. Patent benches frequently adapt this test to the patent context.
How this plays out in real cases:
Injunctions granted: The Delhi High Court restrained Glenmark for infringing Merck’s sitagliptin patent, illustrating that strong merits and credible harm can justify early restraint. Permanent relief and validity findings followed.
Injunctions denied: In Roche v Cipla concerning erlotinib, an interim injunction was refused at first instance, showing courts may decline if the prima facie case or equities are uncertain, even in pharma. On appeal, later findings addressed infringement differently, but the early restraint was not automatic.
Higher threshold in hotly contested tech: The Bajaj Auto v TVS litigation highlights that validity challenges and market equities can complicate interim relief, and there is no presumption that a granted patent must always yield an injunction.
Practical takeaway: you can move the court immediately after grant, but success turns on the evidentiary strength of your claim chart, proof of harm, and how the equities stack up under the Wander test.
What acts remain beyond reach even after grant?
Even with Section 48 rights, the Act builds in important limits:
Section 47 conditions: Government can make or import for its own use, and experimental or instructional use is allowed, among other listed conditions.
Regulatory use and parallel import under Section 107A: Making, using, selling or importing solely for regulatory submissions is not infringement, and parallel import from a person lawfully authorised abroad is permitted. Delhi High Court has clarified that, subject to safeguards, even export for regulatory purposes can fall within Section 107A.
Government use under Section 100: Central Government or its authorised person may use the invention for governmental purposes on terms, with remuneration settled by agreement or the High Court if needed.
Compulsory licence after three years, Section 84: A third party can seek a licence on specified grounds such as unmet public requirements or non-affordability.
These carve-outs matter when deciding whether an interlocutory restraint is realistic or whether a different strategy, such as price competition or licensing, is prudent.
From when can money be claimed, and for what period?
Although you cannot sue before grant, Section 11A(7) gives applicants “like privileges and rights” from the publication date. After grant, courts can award damages or reasonable royalty for infringing acts committed after publication that still read onto the finally granted claims. This bridges the pendency gap but does not dispense with the need for a post-grant suit.
At the same time, Section 111 can bar damages or profits against an innocent infringer who proves lack of knowledge of the patent’s existence at the time of infringement. Early notices and accurate product marking improve your position on damages.
Where and how to sue, and who carries what burden?
Forum and transfer: File in a District Court of competent jurisdiction, but if the defendant files a revocation counter-claim, the matter shifts to the High Court.
Reliefs: Courts may grant injunctions, and at the plaintiff’s option, damages or an account of profits, along with delivery-up or destruction.
Process patents: For process claims, Section 104A can shift the burden to the defendant to prove a different process, once the patentee shows substantial likelihood or identity of product, which is particularly valuable at the discovery stage.
A crisp “first 30 days after grant” playbook
Audit your claim chart against the granted claims. If prosecution narrowed the claims, re-run the mapping to ensure continued read-on. This prevents over-reach that can hurt an injunction bid.
Send a precisely drafted notice. Identify the patent number, the granted claims, and the infringing acts, attach a clean mapping, and seek undertakings. This supports damages beyond grant by blunting Section 111 defences.
File with strong affidavit evidence. Include technical expert declarations, market share data, and pricing impact to establish irreparable harm and balance of convenience. Courts have rewarded well-built records with swift restraints in matters like Merck v Glenmark.
Anticipate Section 107A and Section 47 arguments. If the defendant claims regulatory use or government supply, show why the quantities or end-use fall outside the safe harbour using the Delhi High Court’s guidance in Bayer v Union of India / Alembic.
Choose remedies wisely. Decide between damages and account of profits at the right time, and preserve sales data to justify the quantum under Section 108.
FAQs, answered within the flow
Do I need to wait for the PDF certificate to move court?
No. Once the patent is granted, your Section 48 rights vest and you may sue and seek interim relief. Speed matters for equities, but be sure your claim chart matches the granted text.If I file today, will the court stop the rival tomorrow?
Courts act fast in deserving cases, but an injunction is discretionary and depends on the Wander test. Results differ across matters, as shown by contrasting outcomes in Merck v Glenmark and Roche v Cipla. Prepare for both possibilities, including expedited trial if restraint is denied.What if the defendant says it is only doing regulatory trials or exporting samples?
Section 107A protects bona fide regulatory use, including export for that purpose, but courts verify purpose, quantities and end-use. Be ready with contrary evidence if you believe the use is commercial in disguise.Will government procurement defeat my injunction?
Where the Union authorises use under Section 100, remedies often shift towards remuneration rather than restraint. The facts and authorisation letter decide the outcome.Bottom line
A granted patent changes your posture decisively. You move from provisional protection to full exclusionary rights, with access to injunctions and monetary relief. Yet immediate stoppage is a matter of convincing a court, not a switch you flip. Frame your injunction through the Wander lens, pre-empt statutory carve-outs such as Sections 47 and 107A, and use the publication-to-grant window under Section 11A(7) to support damages. Patentees who prepare this groundwork often secure early and effective relief, without overpromising what the law does not allow.
