The Patents Act,1970
Section 107. Defences, etc. in suits for infringement
(1) In any suit for infringement of a patent, every ground on which it may be revoked under section 64 shall be available as a ground for-defence.
(2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus or other article or by the using of any process or by the importation, use or distribution of any medicine or drug, it shall be a ground for defence that such making, using, importation or distribution is in accordance with any one or more of the conditions specified in section 47.
COMMENTS
There is a distinction maintained as between the defence raised to a suit for infringement of a patent (vide s. 107) on the one hand and the revocation sought of a patent on the other (vide s. 64). The grounds may be the same, but still there is no inconsistency on account of the suit being defended as liable to dismissal in a particular case and a case where the defendant seeks also that the patent asserted by the plaintiff be revoked. It is only when there is a counter claim seeking revocation of the patent that the jurisdiction of the District Court is ousted. The proviso to s. 104 being in the nature of an exception to the general rule, it has to be strictly construed. There is no express claim on the part of the defendant for revocation of the patent whereof infringement is alleged by the plaintiff. That the defendant pleads that the patent set up by the plaintiff is invalid amounts only to the defendant raising a ground for the relief sought by the plaintiff being declined; it does not follow necessarily that the defendant also seeks by way of a counterclaim that the patent be revoked. The defendant has not asserted in the pleadings anywhere that they are the patentee or that they are entitled to be registered as such. The grounds raised are cumulatively and also individually by way of defence to the plaintiff’s action. Fabcon Corporation v. Industrial Engineering Corporation AIR 1987 All 338
Where the defendant neither claims to be the owner of the patent nor has it filed any petition or counter-claim, it cannot plead that the plaintiff has no locus standi to institute proceeding for infringement of patent, merely raising the plea that the plaintiff’s registration is improper. Schnie-der Electric Industries SA v. Telemecanique and Controls (I) Ltd. (IA No. 8522) 2000 (20) PTC 620 (Del).