A constant refrain from a number of Indian IP practitioners is that when it comes to IP damages, Indian courts award a mere pittance.
If recent trends in medical negligence cases are anything to go by (see this Legally India article, where the Supremes awarded a whooping 6 crores [1.3 million USD]), one can expect that damages in other areas of law (such as IP) might also shoot up in the years to come.
The fact that our courts were fairly promiscuous about injunctions (and hoped that matters would settle between parties) may have accounted for the lack of interest in any serious award of “damages”. But now that more IP cases are moving to trial (including many a patent case), courts will have to wrap their hands (and legs) around damages and figure out ways of valuing loss to the IP owner. Time for IP valuation experts, economists etc to step into the ring!
As for predictions, I expect that a rather unknown case (that has not made mainstream media news as yet) will step up the ante for damages. It is a classic David vs Goliath narrative, raising the likelihood that judges will lean towards David, an old earnest inventor. So here goes:
Varadaraya Nayak, a distinguished professor hailing from Mangalore had come up with a novel way of keeping hair particles from sticking to blades in a razor. He filed a patent and then took the idea to two major companies, but none of them bit. One of them (Gillette) turned around and filed a pre-grant opposition against his patent application and lost. And the other (Harbans Lal Malhotra & Sons Pvt Ltd) turned him down, but went ahead and allegedly built a product using his patented technology. The professor sued for patent infringement before the Delhi High Court and is represented by attorneys who took up his cause pro-bono. Although the case was filed more than a year and a half ago, the arguments are still at the interim injunction stage. And I am given to believe that the patent will expire in a couple of months (March 2014).
If the court finds in favour of the plaintiff, and an injunction is meaningless (given the nearing patent expiry date), the only way to compensate the poor professor and send out a clear message is by stamping heavy duty damages. If this does happen, India will begin singing a slightly different patent tune…and damages (and serious one at that) will be here to stay. Interesting times ahead!
ps: For those interested, November 6th is the next date of hearing. And the case number is OS 523/2012 (Varadaraya Nayak vs SK Anand and Ors).
