Analysis of Injunction Rules in Key IP Jurisdictions (Part II): Strategies for Chinese Companies Facing India’s Rising Injunction Risks

In recent years, cross-border patent disputes have intensified, drawing an increasing number of Chinese companies into major global litigation. Among the available remedies, injunctions often exert the most immediate and disruptive commercial impact. This series explores injunction practices in leading IP jurisdictions, analyzing their structural features and providing practical strategies to help Chinese companies manage legal risks when expanding overseas.

India has long attracted Chinese enterprises seeking market expansion, owing to its strategic location and vast population. Many Chinese companies view India as a “second China market” and a key growth engine that is difficult to replace. Given this strategic importance, injunctions issued by Indian courts have increasingly become a powerful leverage tool for patentees seeking to secure licensing agreements with Chinese enterprises. Concurrently, temporary injunctions in India are generally more readily obtainable than in many other jurisdictions.

In recent years, India has also taken steps to expedite patent litigation, including the establishment of IP-specific judicial divisions, expert panels within courts, and various legislative initiatives. These developments are likely to attract increased attention from IP right holders in the coming years. However, many Chinese enterprises still lack a comprehensive understanding of India’s patent framework. To date, several major Chinese companies - including Xiaomi, ZTE, and OPPO - have faced both temporary and permanent injunctions in India. Given that India represents a high-risk jurisdiction for injunction exposure, a clearer understanding of its injunction framework is essential for Chinese enterprises to develop effective response strategies and mitigate potential market disruption.

1. Classification of Injunctions

As in most jurisdictions, injunctions in India are generally classified into interim injunctions and permanent injunctions, depending on the stage at which they are issued. Section 108 of India’s Patents Act, 1970 expressly recognizes permanent injunctions as an available remedy for patent infringement. Although the Act does not specifically address temporary injunctions in patent infringement proceedings, such relief may be sought under the general provisions governing civil interim injunctions in the Code of Civil Procedure and the Specific Relief Act.

(1) Issuance of Injunctions

(2) Procedures for Issuing Injunctions

Temporary injunctions in India may be granted in two forms: ex parte (unilateral) and inter partes (bilateral). The key distinction lies in whether the respondent is afforded an opportunity to be heard during the interim injunction proceedings.

The power of Indian courts to issue ex parte injunctions is codified in Article 13 of the Code of Civil Procedure. Nevertheless, the Supreme Court of India has consistently adopted a highly cautious approach to the exercise of this extraordinary power. The apex court has emphasized the need for judicial restraint to prevent abuse of this authority, clarifying that inter partes injunctions should be the general rule, with ex parte injunctions reserved for exceptional circumstances.

In Morgan Stanley v. Kartick Das, the Supreme Court of India clarified that ex parte interim injunctions may be granted only in exceptional circumstances and set out the following factors for consideration:

(1) Whether the applicant would suffer irreparable harm or serious prejudice;

(2) Whether refusing the ex parte injunction would result in greater injustice than granting it;

(3) The timing of the applicant’s initial filing, to ensure that injunctions are not issued inappropriately in the respondent’s absence;

(4) Whether the applicant has engaged in any conduct amounting to acquiescence;

(5) Whether the applicant has acted in the utmost good faith in bringing the application.

If the court ultimately decides to grant an ex parte injunction, it must record its reasons in writing and ensure that the order is served on the respondent at the earliest opportunity. The injunction takes effect immediately upon service. In practice, however, both High Courts and District Courts have frequently departed from this guidance in patent infringement cases, granting ex parte temporary injunctions with a considerable degree of discretion.

A distinctive feature of India’s ex parte temporary injunction regime is that it does not completely deprive respondents of the opportunity to defend themselves. After service of the injunction, the respondent is entitled to challenge it, typically at a subsequent preliminary hearing. The court will then reassess whether the injunction should remain in force in light of the parties’ submissions.

2. Conditions for Issuing Injunctions

In India, patent disputes — including those involving standard-essential patents (SEPs) — are generally treated in the same manner as ordinary civil disputes for the purposes of temporary injunctions. Courts assess applications for temporary injunctions by examining the classic tripartite test: i. Whether the plaintiff has established a prima facie case; ii. Whether the balance of convenience favors relief; and iii. Whether irreparable loss would result.

Courts rarely take into account the particular characteristics of SEPs, including issues relating to standard implementation and market access.

When assessing prima facie infringement, Indian courts place particular emphasis on the validity of the asserted patent. Historically, Indian courts adhered to the principle that a patent would not be presumed valid if it had been in force for less than six years. In the case of Sandeep Jaidka v. Mukesh Mittal & Anr, the Delhi High Court reaffirmed this stance, noting that if clear infringement facts are established without any fault on the plaintiff’s part, the court will generally grant an interim injunction in the following scenarios:

(1) The patent’s validity has been confirmed in previous litigation;

(2) The patent is mature (i.e., has a relatively long authorization period) with unbroken patent rights;

(3) The defendant challenges the patent’s validity, but the court confirms that the patent is valid.

It is evident that such prima facie evidence is often easier to establish in SEP disputes.

Notably, similar to Brazil, Indian courts are strongly inclined to protect the interests of patentees and may grant temporary injunctions without requiring the right holder to provide any security. Between 2000 and 2016, injunctions were granted in 60% of all patent infringement cases - an exceptionally high rate globally - including ex parte temporary injunctions.

In the landmark case of Ericsson v. Intex, the Delhi High Court took cognizance of the reality that India has a shortage of judges, leading to lengthy delays in rendering final judgments. The court reasoned that denying temporary injunctive relief would stifle patentees’ incentive to innovate and increase the likelihood of unavoidable losses. Consequently, it upheld Ericsson’s application for a temporary injunction and established several key rules for such injunctions in this case:

(1) Injunctions are more effective than monetary compensation in addressing anti-holdout behavior by non-bona fide implementers;

(2) Even if a patentee alleges infringement of a single SEP, they may still obtain an injunction and interim security covering the entire patent portfolio;

(3) Courts may require implementers to provide interim security prior to issuing a temporary injunction;

(4) During the interim injunction hearing phase, implementers cannot merely raise a simplistic defense of SEP invalidity; instead, they must submit substantive evidence to prove the patent’s invalidity. This burden of proof is heightened if there were no objections during the SEP prosecution process and no invalidation applications have been filed.

These rules significantly increase the difficulty for implementers to mount defenses in inter partes injunction proceedings, resulting in an overall high risk of temporary injunctions in India. Furthermore, due to the excessively long duration of patent infringement litigation in India, temporary injunctions often effectively operate as permanent injunctions in practice.

3. Latest Trends in Courts Resolving Patent Disputes

Patent infringement cases in India are first heard by District Courts or High Courts. However, most judges in India - particularly those in District Courts - have received little to no systematic training in patent law. This not only leads to a lack of uniform judicial standards in practice but also results in a backlog of cases, making it difficult to predict the timeline of patent litigation.

As a result, the Delhi High Court has emerged as the most preferred jurisdictional court in India due to the speed and sophistication of its IP bench rulings. In 2022, the Delhi High Court became the first high court in India to establish a dedicated IP division, conferring upon it exclusive jurisdiction over intellectual property disputes. Within a year, the division resolved over 50% of pending IP cases - a model that was subsequently adopted by the Madras High Court.

In its 2022-2023 annual report, the Delhi Intellectual Property Office indicated that India plans to establish IP divisions in at least 10-15 additional High Courts to expedite patent litigation proceedings. It is foreseeable that India’s injunction rules and other IP regulations will be significantly refined as judicial professionalism and efficiency improve. However, there is a tangible risk that "forum shopping" - opportunistic litigation behavior driven by inconsistent judicial standards - will intensify in India.

3. Relevant Special Procedures

A. Interim Security (Pro Tem Security)

India is currently among the very few jurisdictions that not only grants temporary injunctions to SEP right holders but also may allow them to seek interim license royalties (often referred to as pro tem security) at the outset of litigation. This applies even before the court addresses substantive issues such as infringement, FRAND (Fair, Reasonable, and Non-Discriminatory) terms, patent validity, or the granting of a temporary injunction.

The forms of security for interim license royalties are diverse, including bank guarantees, mortgages on unencumbered real estate, and other acceptable instruments - a flexibility that is crucial for safeguarding enterprises’ cash flow. For instance, in the case of Nokia v. OPPO, the Delhi High Court upheld Nokia’s application for interim security based on the following alleged facts:

(1) OPPO had been a licensee of Nokia’s patents for three years since 2018;

(2) OPPO continued to negotiate a new license agreement with Nokia;

(3) OPPO had submitted a counter-offer to Nokia;

(4) OPPO had requested interim payment terms from Nokia;

(5) OPPO had sought a ruling on FRAND rates from a Chinese court.

These facts strongly supported the existence of patent infringement and the necessity of interim security. Accordingly, the Delhi High Court ordered OPPO to pay 23% of the royalty amount specified in the 2018 patent license agreement between Nokia and OPPO - a figure representing India’s share of OPPO’s global sales.

B. Pre-Action Mediation

India has a unique pre-action mediation system, as stipulated in Section 12A of the Commercial Courts Act, 2015:

"The plaintiff shall not commence an action until the remedies of pre-action mediation have been exhausted, unless the action seeks any urgent interim relief provided for under this Act."

This is a mandatory mediation procedure, but it does not apply to cases where the plaintiff seeks urgent interim relief (such as a temporary injunction). Since patentees in patent infringement disputes typically seek a temporary injunction when filing a lawsuit, this procedure is rarely utilized in practice.

However, given the excessively lengthy nature of litigation in India, there is a growing trend among right holders to seek alternative dispute resolution through the Mediation Center of the Delhi High Court. The newly enacted Mediation Act, 2023 further confirms that mediation agreements are enforceable to the same extent as court judgments. For example, LG Electronics and Vivo previously conducted over 50 mediation sessions regarding 4G/5G-related SEP disputes, though the mediation ultimately failed and the matter proceeded to litigation.

4. Chinese Enterprises’ Response Strategies

Patent litigation in India is typically protracted, carries a high risk of temporary injunctions, and involves significant uncertainty. Guided by recent policy initiatives, there is a trend toward accelerated litigation processes and increased reliance on mediation. Correspondingly, courts are seeking to balance the interests of right holders and implementers through rule improvements, while also prioritizing the development of a favorable innovation ecosystem. As such, there is greater flexibility in addressing injunction risks.

Based on past dispute resolution experience, PurpleVine IP offers the following recommendations for Chinese enterprises to navigate injunction risks in India:

A. Proactively Pay Interim License Fees to Avoid Temporary Injunctions

Indian courts may require implementers to provide interim security at the first hearing. Unlike a temporary injunction, interim security does not mandate a cessation of alleged infringing activities. On the contrary, proactively paying interim license fees can mitigate the patentee’s argument of "irreparable harm," thereby reducing the risk of a temporary injunction being granted. Enterprises may also voluntarily offer to make such payments during the defense phase. Furthermore, proactive payment of interim license fees after an injunction has been issued is an effective means of persuading the court to consider lifting the injunction.

B. File an Appeal Promptly

Both temporary and permanent injunctions are appealable within 90 days of issuance. While the appeal process does not automatically suspend the enforcement of the injunction, judicial approaches vary significantly among different courts and judges in India. As a result, there is a strong likelihood that the injunction may be revoked or modified by the appellate court.

C. Initiate an Invalidity Counterclaim

Generally, patent invalidity requests are filed with patent offices in cities such as Delhi and Mumbai. However, in the context of infringement litigation, invalidity claims are transferred to the High Court as counterclaims alongside the infringement lawsuit. Timely filing an invalidity counterclaim against the asserted patent - either before the plaintiff initiates litigation or before the District Court rules on the interim injunction application - can strategically delay the court’s decision-making process regarding the injunction through the transfer of jurisdiction. If the asserted patent is successfully invalidated, any prior injunction issued by the court will be revoked, regardless of whether the patentee appeals the invalidation decision.

D. Strictly Comply with Injunction Orders

Indian courts impose severe sanctions for non-compliance with injunction orders. Disregarding an injunction may lead the court to find the offending party guilty of "wilful and contumacious disobedience" (a criminal offense for deliberate non-compliance with court orders), potentially exposing key corporate personnel to criminal liability.

Author

Vivian(Qin) Wang

Ms. Vivian (Qin) Wang is a qualified Chinese lawyer with 15 years of experience in the intellectual property industry. Her expertise spans the full IP value chain, from patent strategy and filing to licensing, litigation, and patent asset commercialization. She specializes in litigation management, patent licensing, and the monetization of IP assets. Her key areas of practice include patent licensing negotiations, litigation settlements, designing licensing programs, patent portfolio commercialization, and drafting licensing agreements. Prior to joining PurpleVine IP Group, she worked at ZTE Corporation and Longji Green Energy Technology Co., Ltd. Ms. Wang holds a Master’s degree in Law from Northwest University of Political Science and Law and is qualified as both a Chinese attorney and a Chinese patent attorney. Contact Vivian at vivian.wang@purplevineip.com.

Eren(Xi) HE

Before joining PurpleVine IP Group, Mr. Xi He worked at ZTE, where he was responsible for managing and executing licensing strategies related to communication standard essential patents (SEPs). With over six years of experience in the IP field, he has been involved in large-scale international cross-licensing projects, patent pool operations, as well as patent transactions and valuation analyses. Mr. He is well-versed in the policies of major international standards organizations, such as 3GPP, and specializes in the full life-cycle management of SEP portfolios, as well as business strategy and external negotiations in licensing operations. Contact Mr. He at eren.he@purplevineip.com.

Robin(Danlei) Feng

Ms. Danlei Feng, a licensing assistant at PurpleVine IP, has accumulated 2 years of experience, assisting the team in patent litigation searches, analysis, due diligence, and legal assessments in numerous global patent licensing and dispute resolution cases. These cases span multiple technical fields, including cellular communications (4G/5G), Wi-Fi, audio and video codecs (AVC/H.264, HEVC/H.265, VVC/H.266, VP9, AV1, AAC), wireless charging (Qi), and more. Ms. Feng holds a Master’s degree in Law from Sichuan University and is qualified to practice law in China. Contact Ms. Feng at robin.feng@purplevineip.com.