Summary: The Indian government has notified amendments to the Indian Patents Act, 1970, which decriminalises minor offences and revises penalties. These amendments go into effect from 1 August 2024.
In August 2023, the Indian government notified the Jan Vishwas (Amendment of Provisions) Act, 2023 ("JV Act"), with an aim to facilitate and promote the ease of doing business in the country. The JV Act sought to amend 42 laws, including the Indian Patents Act, 1970 ("the Patents Act"), by having minor offences omitted, decriminalized, or penalties revised, to ensure that businesses were not adversely affected but were still deterred from engaging in such activities.
The government has since notified that the provisions of the JV Act, in relation to the Patents Act, the Trademarks Act, 1999, and the Geographical Indications of Goods (Registration and Protection) Act, 1999, will come into force with effect from 1 August 2024.
Amendments to The Patents Act
The JV Act decriminalized the offences under Sections 120, 122, and 123 of the Patents Act by imposing a penalty instead of the fine and imprisonment provided earlier. The JV Act also provides for mechanisms for the adjudication of all penalties (including the appointment of an adjudicating officer) as well for appeals against orders of the adjudicating officer.
A summary of penalties as revised by the JV Act is provided below:
| S. No. | Provision | Old penalty under unamended Act | New penalty under amended Act |
| 1. | For falsely representing that the article sold is
patented in India or is the subject of an application
(under Section 120 of the Patents Act) |
Upto one lakh rupees | Upto ten lakh rupees, and one thousand rupees for every day, in case of the continuing claim |
| 2. | For refusal or failure to submit a statement of the
working of a patent (Form 27)
(under Section 122 of the Patents Act) |
Upto ten lakh rupees | Upto one lakh rupees, and one thousand rupees for every day, in case of continuing non-compliance |
| 3. | For submitting false information in Form 27
(under Section 122 of the Patents Act) |
Imprisonment up to six months, or fine, or both | Sum equal to one half per cent of the total sale or turnover, of business or of the gross receipts in profession, or a sum equal to five crore rupees, whichever is less |
| 4. | For practicing as a Patent Agent without
registering himself as such with the Indian Patent Office
(under Section 123 of the Patents Act) |
One lakh rupees for the first offence, and five lakh rupees for second or subsequent offence | Five lakh rupees, and one thousand rupees for every day, in case of continuing default |
| 5. | For improperly describing a place of business as
connected with or associated with the Indian Patents Office
(under Section 121 of the Patents Act) |
Imprisonment upto six months, or fine, or both | This provision now stands omitted from the Patents Act |
Thus, on the one hand, penalties for non-submission of information in Form 27 have been relaxed, and the provision of imprisonment for submitting false information in Form 27 has been done away with. On the other hand, a person not only risks substantially increased penalties for falsely representing that any article sold is patented or subject to a patent application, or for practice as a patent agent without being registered as such, but also risks incurring an incremental penalty in case of continued offence.
Amendment to the Patent Rules, 2003
With the amendments to the penalties for contravention of provisions of the Patents Act, the government has also notified the Patents (2nd Amendment) Rules, 2024 ("Patent AmendmentRules") to provide procedures for filing and adjudication of complaints under Sections 120, 122, or 123 of the Patents Act. The Patent Amendment Rules, published on 16 March 2024, provide procedures for filing complaints against contraventions or defaults under these provisions, the appointment of an adjudicating officer, adjudication of complaints, deciding penalties, and filing an appeal against the decision of the adjudicating officer.
According to the Patent Amendment Rules, any person may file a complaint with the adjudicating officer regarding any contravention or default committed by any person of the provisions contained in Sections 120, 122, or 123 of the Patents Act. Upon filing of the complaint, a notice shall be served to the patentee, followed by an inquiry, evidence, hearing, and decision with the imposition of penalty, if found, against the patentee.
Way Forward
The contraventions provided for under Sections 120, 122, and 123 of the Patents Act have thus far never been enforced. However, the latest set of amendments, in combination with amendments to the Patent Rules, 2003 by way of the Patents Amendment Rules, which permit any person to complain to the Indian Patent Office for contravention of these provisions, require businesses to be vigilant when representing that the products have been patented, or when complying with Form 27 requirements.
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