Abrogating Sovereign Immunity in Patent Infringement Cases in India: Retreating Without Disgrace

Abstract

A broad overview of the present patent regime internationally, reveals that States have an untrammelled, unbridled privilege to derogate from any burden as may arise on infringement of patents held by its citizens, in the name of ‘sovereign immunity’. This is in addition to a power conferred upon the State to acquire patents arbitrarily and the discretion to grant compulsory licenses to third parties. In the United States of America, this has aroused much debate ever since the judiciary maintained a stand in favour of the doctrine of sovereign immunity which has its roots in the British Common Law concept of ‘the king can do no wrong’; a principle that is regarded anachronistic by many.<br></br><br></br> Even in India, the Indian Patent Act, 1970 has provisions which immunize the State from liability in cases of patent infringement and provide for arbitrary acquisition of patents; for reasons that need not necessarily fall within the ambit of medical emergencies or only for life-saving medicines or technologies, as many would wrongly tend to believe, but for any use by the government. Under the Act, the government can infringe or acquire a patent directly and openly without any liability. In the light of this, can Article 300A of the Indian Constitution (the right to property), interpreted in the light of the doctrine of reasonableness, be used as a remedy by patentees in case of infringement by the State through a writ petition under Article 226 of the constitution? After all, the jurisprudence of the liability of the State in India is indeed much more evolved and more oriented in favour of the rule of law than it is in the United States. This article examines and denounces the sheer incongruity between patent infringement liability for acts by a private individual and exemption for the same acts by the government and suggests some reforms in the present Indian patent law.