1. Introduction and Legal Framework

The Patents Act, 1970 is the primary legislation for the grant and enforcement of patents in India. While Section 108 provides civil remedies for infringement, the Act also contains criminal provisions to address wilful violations that threaten the patent system, public interest, or national security.

1.1 Key Penal Sections

• Section 118: Contravention of secrecy provisions (e.g., defense-related inventions).
• Section 119: Falsification of entries in the Register of Patents.
• Section 120: Unauthorized claim of patent rights (falsely representing an article as “patented”).
• Section 122: Refusal or failure to supply information requested by the Controller.

Note on Section 118: Although it involves national security, the punishment is only up to 2 years. Under the BNSS schedule, cognizability and bailability are determined as per the First Schedule of the BNSS or specific statutory provisions, and not solely based on the quantum of punishment. However, in practice, if such an act also triggers sections of the BNS (Bharatiya Nyaya Sanhita) related to state security, it could be treated as cognizable under those specific provisions.

Section 122 is divided into two parts as follows:

• Section 122(1) – Refusal or failure to furnish information: This is punishable only by a fine (which can extend to ₹10 Lakhs). There is no imprisonment for mere refusal.
• Section 122(2) – Furnishing false information: This is the more serious one, punishable with imprisonment up to 6 months, or a fine, or both.

If the contravention involves sharing sensitive defense data with a foreign power, the I.O. should immediately look to invoke the Official Secrets Act, 1923, which is cognizable and carries much heavier penalties.

Establishment of mens rea (knowledge, intention, or deliberate misrepresentation) is essential, especially for offences under Sections 120 and 122(2) is a mandatory element.

1.2 Investigating Authority

Investigations are typically conducted by police officers of the rank of Sub-Inspector (SI) or above. Jurisdiction is determined by the location where the infringement, falsification, or unauthorized sale occurred.

2. Pre-Investigation: Receiving the Complaint

Begin investigation only upon a written complaint from the Controller or aggrieved party.

• Verify Patent Status: Use the IPIndia portal to ensure the patent is active. Check for Cessation of Patent (Section 53) due to non-payment of fees.
• Obtain Certified Copies: Secure the Patent Certificate and “Complete Specifications” (claims) from the Patent Office.
• Jurisdiction: For digital misrepresentation, jurisdiction exists where the website or advertisement was accessed.

3. The Investigative Process

3.1 Recording of FIR/General Diary

• Cognizable Offenses: Section 118 offences under the Patents Act are ordinarily non-cognizable. However, if the act involves national security implications attracting provisions of the Bharatiya Nyaya Sanhita, 2023 or the Official Secrets Act, 1923, an FIR may be registered for those cognizable offences. If a case involves multiple offences and at least one is cognizable (e.g., if there is also an allegation of cheating or forgery under the BNS), the entire case is treated as cognizable (Section 174(4) BNSS).
• Non-Cognizable Offenses: For sections like 120, the Investigating Officer (I.O.) must seek a Magistrate’s order under Section 174 of the BNSS to begin the investigation. He must file a report in the Non-Cognizable (NC) Register and obtain a specific order from the Magistrate having jurisdiction to investigate and arrest.

Even with a Magistrate’s order for a non-cognizable offence, the I.O. cannot arrest without a warrant unless specifically empowered, unlike in cognizable cases where Section 174(4) BNSS (combined offences) applies.

3.2 Evidence Collection

• Commercial Invoices: To prove the sale of falsely marked goods.
• Marketing Material: Brochures and digital ads claiming “Patent Applied For” or “Patented” status.
• Technical Logs: Emails or internal memos showing the intent to bypass secrecy directions.

3.3 Search and Seizure (Section 185 BNSS)

• Independent Witnesses: Must be conducted in the presence of two local inhabitants (Panchas).
• Digital Evidence: Use Faraday Bags for mobile devices. Document the Chain of Custody for servers using unique hash values.
• Seizure Memo: A detailed inventory must be signed by the witnesses and the accused.
• Videography: The search process should be videographed on a mobile/camera and the recording must be sent to the Magistrate without delay to ensure compliance with the new laws (Section 105 BNSS). The videography should ideally be uploaded to the e-Sakshya portal or the designated state digital evidence folder to maintain the “unbroken” digital chain.
• Preparation of Seizure Memo / Panchnama
  • Must detail description, quantity, identification marks
  • Signed by accused + independent witnesses
  • Time, date, GPS/location tagging (recommended)

4. Technical Analysis & Forensic Protocols

4.1 Role of Experts

As a police officer is not a “Person Skilled in the Art,” the I.O. should:

• Request a technical opinion from the Controller of Patents to compare the seized item against the patent claims.
• Consult the Ministry of Defence for Section 118 violations.

4.2 Modern Forensics

• Metadata Analysis: Examine digital files to identify authors and timestamps of falsified records.
• Algorithmic Accountability: Trace AI-generated infringing content back to the human operator or owner.
• Compliance: Ensure compliance with hash verification, mirror imaging, and certification under Section 63 BSA for admissibility.

5. Filing the Final Report (Charge Sheet)

The report under Section 193 BNSS must include:

• Patent Comparison Table: A side-by-side analysis of patent claims vs. the infringing product. The technical opinion from the Patent Office should be attached as an expert statement under Section 51 of the BSA (Opinion of Examiners of Patents).
• Section 63 BSA Certificate: Mandatory for the admissibility of any digital or electronic evidence.
• Sanction for Prosecution: Required if the accused is a government servant.

6. Checklist for Investigating Officers (I.O.)

 7. Judicial Jurisdiction

• Civil Infringement: Must be filed in a District Court or higher. If a counter-claim for revocation is filed, it moves to the High Court (Section 104).
• Criminal: Usually handled by a Judicial Magistrate of the First Class. National security cases may be moved to special courts.

8. Coordination with Patent Office

• Seek clarification under Section 115
• Verify:
  • Patent status (granted / lapsed / revoked)
  • Scope of claims
  • Any compulsory licensing

9. Key Takeaways

This SOP ensures investigations under the Patents Act, 1970 are carried out with accuracy, fairness, and compliance.

• Legal Foundation: Offences defined in Sections 118–122; BNSS and BSA provide procedural safeguards.
• Investigation Flow: Complaint → Verification → Evidence → FIR → Expert Opinion → Charge Sheet → Court.
• Technical Oversight: Patent validity checked via IP India; forensic and metadata analysis for digital proof.
• Judicial Coordination: District Court handles infringement; the High Court decides revocation counter‑claims.
• Safeguards: Magistrate approval for non‑cognisable offences, confidentiality under Section 35, and expert input under Section 115.
• Outcome: Protects innovation, prevents misuse of patent rights, and reinforces India’s commitment to fair enforcement and public interest.

10. Conclusion

Following this SOP ensures that the investigation meets the high technical and legal standards required by the Patents Act and the new BNSS/BSA framework. It protects the integrity of India’s innovation ecosystem while ensuring procedural fairness.

ANNEXURE

Case Laws

Indian case laws have significantly shaped the interpretation and enforcement of the Patents Act, 1970, particularly on issues of jurisdiction, procedural efficiency, inventive step, and the balance between patent protection and public interest. In Dr Aloys Wobben v. Yogesh Mehra (2014), the Supreme Court clarified that when a defendant files a counter-claim for revocation in a patent infringement suit under Section 104, the proceedings must be transferred to the High Court; the defendant cannot simultaneously pursue a separate revocation petition before the Controller or IPAB to avoid multiplicity of proceedings.

In Bajaj Auto Ltd. v. TVS Motor Co. Ltd. (2009), the Supreme Court directed all courts to ensure speedy disposal of intellectual property matters, preferably on a day-to-day basis, to prevent protracted litigation. The foundational principles for determining novelty and inventive step — critical for proving offences such as falsification of the register under Section 119 — were laid down in Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979), which held that a mere workshop improvement or minor variation of known technology does not qualify as an invention.

Furthermore, the courts have also taken a strong “pro-public health” stance in major cases like Novartis v. Union of India (2013) and Bayer v. Union of India (2014). These rulings confirmed that getting a patent isn’t just about making a small change to a drug; instead, the invention must show significantly better medical results (under Section 3(d)). Furthermore, the courts established that public access is a priority, allowing for “compulsory licensing” to ensure that life-saving medicines remain affordable rather than being controlled by a single company’s high prices.