Section 48 of the Patents Act, 1970
Rights of patentees
Section 48 gives a patentee the exclusive right to stop others making, using, selling, offering or importing the patented product or process in India.
Official legal text
The verbatim statutory text of this provision is reproduced from the official source and checked by our legal reviewer before it is published here. Until that check is complete for this page, read the exact wording directly from the official source linked below — it is the only version that governs.
Read this as a plain-language summary. If it and the official text, or a relevant Gazette notification, say different things, the official text and the notification are what count.
What this section says, in plain language
Section 48 is the provision that turns a granted patent into a usable commercial asset. It states what the patentee can stop other people from doing in India without consent. For a patent on a product, the patentee can prevent third parties from making that product, using it, offering it for sale, selling it, or importing it into India for any of those purposes. For a patent on a process, the patentee can prevent third parties from using that process, and can also reach the product obtained directly by that process.
The right under Section 48 is a right to exclude. It is not a right to practise the invention. A patentee may still need regulatory clearance to sell, and may still need a licence from someone else whose earlier patent covers a component of the same product. A common example is an improvement patent that cannot be worked without a licence under the basic patent it improves upon.
The right applies inside India. Making a product in another country is not an infringement of an Indian patent, but importing that product into India can be. This is why exporters and importers check Indian patents even when their factory sits abroad, and why the process patent limb matters so much for chemicals and pharmaceuticals, where the process may be run overseas and only the resulting substance arrives in India.
Section 48 opens with the words that make it subject to the other provisions of the Act. That is not a formality. The rights are cut down by the conditions in Section 47, by compulsory licences under Chapter XVI, by Government use under Chapter XVII, by the temporary presence exception in Section 49, and by the defences in Section 107 and 107A. Where a patent is jointly owned, Section 50 governs how the co-owners may each exercise the rights.
Timing matters as well. Under Section 11A, once an application is published the applicant gets privileges and rights as if the patent had been granted on the publication date, but no infringement proceedings can be started until the patent actually issues. So a published applicant can build a damages claim for the interim period, but has to wait for grant before going to court.
Why this section matters
Every patentee and exclusive licensee, and every competitor, importer, distributor or contract manufacturer working in the same field in India.
From grant onwards, and in practice from publication, because that is when the clock for interim rights starts running under Section 11A.
A negative right to exclude others from defined commercial acts in India, which is what makes a patent licensable, assignable and enforceable.
A patentee who does not understand the scope of the right may sue on the wrong acts or the wrong party; a business that ignores it may build a product line that has to be withdrawn.
How it works in practice
A process patent and an imported chemical
Sundara Fine Chemicals Pvt Ltd of Vadodara holds an Indian patent on a process for making a speciality polymer additive. A Chennai trading house begins importing the same additive from a factory in another country that uses the identical process. The trading house argues it has made nothing in India. Section 48 answers that: for a process patent, the patentee may stop others from using the process, and also from using, offering for sale, selling or importing in India the product obtained directly by that process. So the import and onward sale are within the patentee's right, even though the manufacturing happened abroad. If the overseas factory had reached the same additive by a genuinely different route, Sundara's process patent would not reach that product, and the dispute would turn on evidence about which process was actually used. That evidentiary problem is exactly why Section 104A shifts the burden of proof in certain process patent cases.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- A patent is a right to stop others, not a licence to work the invention yourself.
- Product patents cover making, using, offering for sale, selling and importing in India.
- Process patents cover use of the process and also the product obtained directly by it.
- The rights only operate within India, but import into India is one of the acts covered.
- The rights are expressly subject to the rest of the Act, including Sections 47, 49, 84 and 100.
- Rights run for the term under Section 53, and only while renewal fees keep the patent in force.
Common mistakes and misunderstandings
- Thinking a granted patent guarantees the freedom to sell the product. It does not; someone else's earlier patent may still block you.
- Believing a patent gives worldwide protection. An Indian patent is enforceable in India only, and separate filings are needed elsewhere.
- Assuming infringement proceedings can start as soon as the application is published. Section 11A allows the claim to accrue, but suit must wait for grant.
- Overlooking that a patent which has lapsed for non-payment of renewal fees confers no rights for that period.
- Treating personal or experimental use as automatically infringing; Section 47 and Section 107A carve out important exceptions.
Connected provisions
A section of the Act states what the law requires. The detail of complying with it, including forms, periods and office procedure, sits in the Patents Rules, 2003. The Rules are a separate instrument and change far more often, so they are shown alongside rather than folded into the section.
Forms, deadlines and fees
- Rights under Section 48 last for the 20-year term measured under Section 53, and only while renewal fees are paid.
- Infringement proceedings cannot be started before grant, even though rights under Section 11A date back to publication.
Open the deadline calculator — and have every date confirmed against the current Rules before you rely on it.
Any official fee connected with this provision is fixed by the First Schedule to the Patents Rules, not by the provision itself. The amount depends on who the applicant is and on whether the filing is made online or on paper, so no figures are reproduced here. How Indian patent fees work.
Amendment history
What changed in this provision, newest first. Read the footnotes in the official consolidated text for the full record.
- 2005The Patents (Amendment) Act, 2005A proviso was removed as part of the shift to product patents in all fields.
- 2002The Patents (Amendment) Act, 2002The section was replaced. What a patent gives its owner was restated as a right to stop others from making, using, offering for sale, selling or importing, set out separately for product patents and for process patents.
Compiled from official consolidated texts and Gazette notifications. See the site-wide change log.
Related judgments
F. Hoffmann-La Roche Ltd. & Anr. v. Cipla Ltd.
2015 SCC OnLine Del 13619; MIPR 2016 (1) 1 (RFA(OS) 92/2012 and RFA(OS) 103/2012)
Question before the courtWhether a generic company's polymorph product infringed a patent on a cancer compound, and whether that patent was invalid.
HeldThe Division Bench held the patent valid and infringed. It rejected the attacks based on obviousness, insufficient disclosure and the bar on new forms, reasoning that the new form objection was directed at the defendant's own later form rather than at the patented compound. Infringement was decided by comparing the defendant's product with the claims, not with the patentee's marketed product. Because the patent was close to the end of its term the Court declined a permanent injunction and instead directed an inquiry into damages or accounts.
Merck Sharp & Dohme Corporation & Anr. v. Glenmark Pharmaceuticals Ltd.
2015 SCC OnLine Del 8227 (FAO(OS) 190/2013) · Judgment source ↗
Question before the courtWhether an interim injunction should have been refused to the holder of a patent on a diabetes compound whose salt form a generic maker was selling.
HeldThe Division Bench reversed the refusal and restrained the generic maker pending trial. It took the view that a patent claiming a compound together with its pharmaceutically acceptable salts is not sidestepped by marketing a salt of that compound, so a prima facie case of infringement was shown. The challenge to validity was not thought strong enough at that stage to displace a granted patent. The balance of convenience was weighed on the footing that loss to the patentee would be difficult to measure later.
Citation details are being confirmed against an official report before this summary is treated as verified.
AstraZeneca AB & Anr. v. Intas Pharmaceuticals Ltd. & Others
FAO(OS)(COMM) 139/2020 and connected appeals (Delhi High Court, judgment dated 20 July 2021)
Question before the courtWhether a patentee holding both an earlier genus patent and a later species patent over the same molecule could obtain an interim injunction against generic makers.
HeldThe Division Bench refused interim relief and dismissed the appeals. It reasoned that a patentee cannot treat a molecule as covered and disclosed by an earlier broad claim for one purpose while presenting the later patent as a separate invention for another. If the compound already fell within the earlier genus, the later claim raised a serious question about whether a further inventive step existed. With validity credibly in doubt and cheaper alternatives already on the market, the balance was against restraining the generic makers.
Citation details are being confirmed against an official report before this summary is treated as verified.
Telefonaktiebolaget LM Ericsson (PUBL) v. Lava International Ltd.
CS(COMM) 65/2016; neutral citation 2024:DHC:2698 · Judgment source ↗
Question before the courtWhether patents said to be essential to telecommunications standards were valid and infringed, and how compensation should be worked out.
HeldAfter a full trial the Court upheld the asserted patents, accepted that they were essential to the standards relied on, and found that they had been infringed. The validity attacks, including those based on the statutory exclusions, were rejected. On remedies the Court awarded damages worked out as a royalty applied to the relevant turnover of the implementer, and it took account of the parties' conduct across years of licence discussions in concluding that the implementer had not behaved as a willing licensee.
Intex Technologies (India) Ltd. v. Telefonaktiebolaget LM Ericsson (PUBL)
FAO(OS)(COMM) 296/2018 and 297/2018; neutral citation 2023:DHC:2243-DB
Question before the courtWhether the holder of standard essential patents can obtain an interim payment from an implementer before trial, and on what terms.
HeldThe Division Bench kept the interim deposit in place while altering the form in which it had to be secured. It held that a patentee is not confined to waiting for damages at the end of a trial, and that a court may order an interim payment where an implementer has used the technology without concluding a licence. It treated fair, reasonable and non-discriminatory obligations as running both ways, so an implementer must also negotiate in good faith, and accepted that licensing a whole portfolio can be consistent with those obligations.
Citation details are being confirmed against an official report before this summary is treated as verified.
Vifor (International) Ltd. & Anr. v. MSN Laboratories Pvt. Ltd. & Anr.
FAO(OS)(COMM) 159/2023, 160/2023 and 161/2023 (Delhi High Court, judgment pronounced 7 February 2024)
Question before the courtWhether a claim that defines a product by the process used to make it protects the product itself or only product made by that process.
HeldThe Division Bench held that where a product is genuinely new and inventive but cannot be described adequately by its structure alone, describing it through its method of preparation does not shrink the monopoly down to that method. The claim protects the product, so a rival who makes the same product by a different route may still infringe. The Court disagreed with the view that one test applies when a patent is granted and a different one when infringement is assessed, and stressed that the novelty must lie in the product.
Case notes are written in our own words from the judgment and are published only after legal review. They are not advice and not a prediction about any other matter. All case notes.
Questions people ask about Section 48
What exactly can a patentee stop under Section 48?
For a product patent, the patentee can stop others from making, using, offering for sale, selling or importing that product in India without consent. For a process patent, the patentee can stop others from using the process, and can also act against the product obtained directly by that process, including where that product is imported. The acts must happen in India. All of this is subject to the rest of the Act, so Government use, research use, compulsory licences and the statutory defences can all limit what the patentee can actually prevent.
Does an Indian patent stop someone manufacturing abroad?
No. An Indian patent has effect in India. Manufacturing in another country does not infringe it. What the patent does reach is the point at which the product enters or is dealt with in India, because importing, selling, offering for sale and using in India are all acts within Section 48. For protection in another country you must obtain a patent there, usually by filing directly or through the PCT route within the priority period.
Can I use my own patented invention freely once it is granted?
Not necessarily. Section 48 gives you a right to exclude others, not a clearance to operate. Your product may still fall within the claims of an earlier patent held by someone else, particularly if your invention is an improvement on existing technology. You may also need regulatory approvals under other laws. A freedom to operate study, done separately from the patent filing, is the usual way businesses check this before launching.
When do my patent rights actually start?
The enforceable right arises on grant. However, Section 11A gives a published applicant the same privileges and rights as if a patent had been granted on the date of publication, with the important limitation that no infringement proceedings may be started until the patent is granted. In practice this means acts done after publication can be included in a claim once the patent issues, so applicants often keep records of competing activity during the pendency period.
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