Why litigation takes so long in India

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Why litigation takes so long in India

Patent owners in India that want to enforce their rights in the courts have to deal with a series of obstacles. Pharmaceutical patents involve extra hurdles

Speakers at a panel discussion on litigation in the life sciences at Managing IP's inaugural IP & Innovation Forum in New Delhi last week explained that the number one problem for all patent owners is delays.

R Parthasarathy, partner of Lakshmi Kumaran & Sridharan, said that, in the case of patents covering the latest technology products, the phrase "justice delayed is justice denied" is particularly relevant.

In India, while the situation is slowly improving, trials still focus on the application for an interim injunction, with the full trial dragging on for many years or being abandoned.

As an example, Parthasrathy used the case of TVS v Bajaj Auto – a dispute between two motorcycle manufacturers over technology relating to twin spark plugs. TVS launched the case in August 2007. The dispute over the interim injunction went to the Supreme Court, which ruled in September 2009 that there should be an expedited full trial heard on a day-to-day basis with no adjournment. The Court stated that the case should be concluded by November 30 2009 and was hailed by some as the beginning of a new era of faster patent litigation in India.

As of February 28, the day of the India IP & Innovation Forum, the trial had not yet started.

The problem is not restricted to IP lawsuits – India's judicial system lacks resources and delays are endemic. Parthasarthy said that, although disputes over the patented technology are particularly urgent, it is difficult for courts to justify allocating large amounts of judicial time to hearing these cases and ignoring others that have languished in the courts for years.

To improve the system, Parthasarathy said that more judges need to be recruited to ensure that, over the course of a trial, the judge does not need to be replaced, which leads to further delays. Judges are often under such time pressure that they can't attend the recording of evidence.

At the same session, Taranpreet Lamba, general manager, intellectual property management at Glenmark Pharmaceuticals, explained to the audience some of the other difficulties faced by plaintiffs in litigation in India, with a particular focus on the life sciences.

Patent litigation cases have increased from only 7 in 2006 to 29 in 2011. In addition to delays, Lamba said other problems for plaintiffs include that the importance of IP protection is not appreciated by enforcement authorities and that there is no specialist IP court.

Patent owners are also likely to be frustrated by the fact that there is no culture of deterrent damages yet in India. Political interference and corruption can also cause problems, as can the lack of an effective mechanism to protect IP rights at Customs.

Life sciences companies also have to take into account India's notorious Section 3(d), the absence of a linkage mechanism between the IP Office and the Office of the Drug Controller General of India, which gives regulatory approval for new drugs. The Supreme Court confirmed this in upholding the rejection of Bayer's application for an interim injunction against Indian generic company Cipla in December 2010.

This means that domestic generic companies are free to launch a new medicine that is covered by a patent owned by an innovator company. The two companies then fight it out in India's scerotic court system.

In addition, India does not have a system of data exclusivity and has a compulsory licensing scheme that could become a serious threat to innovator companies. The first application for a compulsory licence is now being heard by the Controller General for Patents, Trade Marks and Designs. Natco filed the application for the patent covering German pharma company Bayer's anti-cancer drug Nexavar

On the positive side Lamba highlighted the objectivity of the judiciary in India and the fact that the courts are free to take into account court judgments in other common law jurisdictions when writing their judgments.

But the main factor to consider when thinking about patent litigation in India, said Lamba, is the same as elsewhere in the world: money. "The biggest risk is the hole that litigation burns in your pocket," he said.

The India IP & Innovation Forum took place on February 28 at the Regency Hyatt in New Delhi and was attended by over 200 in-house lawyers and business leaders.

more from across site and SHARED ros bottom lb

More from across our site

With the US privacy landscape more fragmented and active than ever and federal legislation stalled, lawyers at Sheppard Mullin explain how states are taking bold steps to define their own regimes
Viji Krishnan of Corsearch unpicks the results of a survey that reveals almost 80% of trademark practitioners believe in a hybrid AI model for trademark clearance and searches
News of Via Licensing Alliance selling its HEVC/VCC pools and a $1.5 million win for Davis Polk were also among the top talking points
The winner of a high-profile bidding war for Warner Bros Discovery may gain a strategic advantage far greater than mere subscriber growth - IP licensing leverage
A vote to be held in 2026 could create Hogan Lovells Cadwalader, a $3.6bn giant with 3,100 lawyers across the Americas, EMEA and Asia Pacific
Varuni Paranavitane of Finnegan and IP counsel Lisa Ribes compare and contrast two recent AI copyright decisions from Germany and the UK
Exclusive in-house data uncovered by Managing IP reveals French firms underperform on providing value equivalent to billing costs and technology use
The new court has drastically changed the German legal market, and the Munich-based firm, with two recent partner hires, is among those responding
Consultation feedback on mediation and arbitration rules and hires for Marks & Clerk and Heuking were also among the major talking points
Nick Groombridge shares how an accidental turn into patent law informed his approach to building a practice based on flexibility and balancing client and practitioner needs
Gift this article