Section 49 of the Patents Act, 1970
Patent rights not infringed when used on foreign vessels, etc., temporarily or accidentally in India
Section 49 says a patent is not infringed by use on a foreign vessel, aircraft or vehicle temporarily or accidentally 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.
This explanation is written for clarity, not for citation. The official statutory text and any Gazette notification in force on your date govern, and they prevail over anything said here.
What this section says, in plain language
International transport would be unworkable if every ship, aircraft or lorry entering a country had to be cleared against that country's patents. Section 49 solves this for India. Where a patented invention is used in the body of a foreign vessel, or in its machinery, tackle, apparatus or other accessories, and the vessel has come into Indian waters only temporarily or accidentally, that use is not an infringement. The same applies to the construction or working of a foreign aircraft or land vehicle, and to their accessories, while they are in India temporarily or accidentally.
There are conditions. The use must be for the actual needs of the vessel, aircraft or vehicle. A ship using a patented winch to work its own cargo gear falls inside the exception; a ship carrying a container of patented goods for delivery to an Indian buyer does not, because that is trade, not the ship's own needs. Presence in India must genuinely be temporary or accidental, such as a scheduled call at a port, a diversion for weather, or an emergency landing.
The exception is tied to reciprocity. It applies to vessels, aircraft and vehicles of countries that are convention countries, or that otherwise give Indian owners similar treatment. If the foreign country would not extend the same protection to an Indian ship or aircraft, the exception need not be available to that country's craft in India. This mirrors the corresponding provision in the Paris Convention and keeps the arrangement mutual.
In practice Section 49 rarely reaches a courtroom, but it shapes advice given to shipping lines, airlines, offshore service operators and cross-border road transporters. It also has a limit worth remembering: it protects the craft and its own operation, not any commercial activity conducted from it. A survey vessel that stops in Indian waters to perform paid seabed work using a patented tool is doing business in India, and Section 49 gives it no shelter.
Why this section matters
Foreign shipping lines, airlines, offshore and survey operators, cross-border transport companies, and Indian patentees in marine, aviation and automotive technology.
Whenever a foreign vessel, aircraft or land vehicle enters India and carries equipment that may fall within an Indian patent.
A defined exception to the patentee's rights under Section 48, based on temporary or accidental presence and on reciprocity.
A patentee may bring a claim that fails at the threshold, and an operator may take a licence it never needed, or wrongly assume shelter while doing commercial work in India.
How it works in practice
An emergency landing at Kochi
Garuda Aeroparts Pvt Ltd holds an Indian patent on a de-icing valve used in aircraft fuel systems. A cargo aircraft registered in a convention country, flying between two points outside India, develops a hydraulic fault and diverts to Kochi. It sits on the ground for two days while a repair crew works on it, and its fuel system, which contains the patented valve, is run during ground checks. Garuda writes to the airline claiming infringement by use of the patented valve in India. Section 49 answers the claim: the aircraft came into India accidentally, the valve is part of its construction and working, and it was used for the actual needs of the aircraft itself. If instead the airline had set up a hangar at Kochi and begun servicing other operators' aircraft using the patented valve, that is ordinary commercial activity in India and the exception would not apply.
Simplified illustration only. Actual legal outcomes depend on the facts.
Key points to remember
- The exception covers foreign vessels, aircraft and land vehicles that are in India temporarily or accidentally.
- It protects use in the craft's own body, machinery, tackle, apparatus or accessories.
- The use must be for the actual needs of the craft, not for trade carried on in India.
- The benefit depends on reciprocity with the country the craft belongs to.
- It is a limit on Section 48 rights and functions as a complete answer to a claim, not a licence.
Common mistakes and misunderstandings
- Treating the exception as covering cargo. Patented goods carried for delivery in India are ordinary imports and are not protected.
- Assuming any foreign-flagged craft qualifies. Reciprocity with the relevant country is part of the test.
- Stretching 'temporary' to cover a craft that is effectively based in India and operating commercially here.
Connected provisions
The Patents Act sets the requirement; the Patents Rules, 2003 set the procedure that carries it out. Parliament passes the Act and the Central Government makes the Rules, so the two are separate instruments. We list the connected rules here to take you from the principle to the paperwork.
Forms, deadlines and fees
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.
Related judgments
You will not find case summaries under this heading today. Each one must pass a legal review before it appears, and that work has not been completed for this provision. If you are researching decided cases, use a law report or a court database in the meantime. How case notes are prepared.
Questions people ask about Section 49
Does Section 49 protect goods carried on a foreign ship into India?
No. The exception is about the vessel itself, its machinery, tackle, apparatus and accessories, and their use for the actual needs of the vessel. Cargo being carried for sale or delivery in India is a different thing. Importing a patented product into India is one of the acts a patentee can stop under Section 48, and the fact that it arrived on a foreign ship changes nothing. Shipping lines are usually not the target of such claims, but the importer or consignee can be.
What counts as temporary or accidental presence in India?
A scheduled port call, a technical stop, a diversion for weather, an emergency landing or a breakdown repair would normally count. The idea is that the craft is passing through rather than operating as part of Indian commerce. A vessel that stays for a long period, is chartered for work inside Indian waters, or effectively bases its operations in India would be difficult to describe as temporarily present, and a patentee could reasonably challenge reliance on Section 49 in that situation.
Does Section 49 apply to aircraft and lorries as well as ships?
Yes. The section covers the construction or working of an aircraft or land vehicle, and their accessories, where the aircraft or vehicle has come into India temporarily or accidentally. So a foreign-registered aircraft on a technical stop and a foreign-registered truck crossing into India on a transit route are both within the same idea. As with vessels, the protection is for the craft's own operation and depends on reciprocal treatment for Indian craft in the other country.
Facing a patent claim over a foreign vessel or aircraft?
MYCrave Consultancy advises operators and patentees on when the temporary presence exception under Section 49 genuinely applies.
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