Damages and Accounts for Profits :
Once the suit is decided in favour of the plaintiff, the court can either award damages or direct the defendant to render an account of profits. The two remedies are alternative and not concurrent in nature. Some express limitations have been imposed on the grant of this relief. The court shall not grant damages or account of profits in the following cases:
(a) Where the defendant proves that at the date of the infringement he was not aware and had no reasonable grounds for believing that the patent existed.
(b) Where an amendment of a specification had been allowed after the publication of the specification, and the infringement action is in respect of the specification before the date of publication unless the court is satisfied that original specification was made in good faith and with reasonable skill and knowledge.
This right to obtain provisional damages requires a patent holder to show the following:
(i) The infringing activities occurred after the patent application was published;
(ii) The patented claims are substantially identical to features of the process or the product infringing the patent; and
(iii) The infringer had actual notice of the published patent application.
The Supreme Court of India has laid down the following guidelines to determine infringement of a patent based on Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries. AIR SC 1978.
(i) Read the description and then the claims;
(ii) Find out what is the prior art;
(iii) What is the improvement over the prior art;
(iv) List the broad features of the improvement;
(v) Compare the said broad features with the defendant’s process or apparatus; and
(vi) If the defendant’s process or apparatus is either identical or comes within the scope of the plaintiff’s process or apparatus, there is an infringement.