Announcement: Latest Issue of Trade, Law and Development Journal Published

The latest issue (Vol. 6, No.1) of Trade, Law and Development, the bi-annual student-run journal of NLU Jodhpur, has been published. The Journal has been ranked as the best law journal in India in the past (2011-2013) and the tenth best law journal in the field of international trade worldwide (in 2012 and 2013) by the Washington and Lee University Law Library in its annual rankings of law journals.

I thank Aabhas Kshetarpal, the Managing Editor of the Journal, for sharing this development with me.

Beginning the New Year with a Few Thoughts for “Specialist” Litigators

Four years ago, on New Year’s Eve, I wrote a post on “generalizing” Intellectual Property Law. In the intervening period, particularly in the last two years, I have been blessed with ample opportunities to apply that sentiment to my work which has improved (I think) my understanding of IP Law and its practice. I have had multiple occasions to understand IP through the prism of Constitutional law, Criminal law and Competition law, and also go through the entire process of trials. The latter has strengthened my firm belief that a lawyer who banks solely on his knowledge of substantive law to deliver the goods is not even half a litigator because procedure will prove to be his Achilles’ heel.

Also, increasingly, I am of the opinion that although it might help to have a dedicated forum to deal with technology litigation, technology litigators must themselves not limit the scope of their practice and learning to their specialized areas. Regardless of what one chooses as her or his area of core competence, a litigator shouldn’t lose touch with fundamentals such as jurisprudence, Constitutional Law and Contracts. In fact, I’d go a step further to say that it is counter-productive, at least in Indian Courts, to project oneself as a specialist technology/IP litigator. Of course, the approach depends on what one wants to be seen as. If the objective is to have a larger appeal and be sought after as a counsel for multiple areas of the law, it helps to be a generalist with core competence in select areas, which is vastly different from exclusively practising niche subjects.

As I have said before, this is important because an internalized understanding of general areas of the law helps a litigator connect with non-specialist Courts which are seized with specialized subjects like IP. I have personally benefited as a litigator by employing this approach each time I have had to present the peculiarities of an IP statute before a Court, hence the conviction. Which is why it surprises me when I hear students of the law, who are yet to set foot in the profession and who wish to litigate, declare with absolute certainty in the first or second semester of law school that all they wish to study and focus on is IP or some other specialized subject.

It is certainly important to closely follow the evolution of jurisprudence in one’s chosen area, but it is equally important to connect it to the big picture because ultimately a litigator must be in a position to present to the Court the larger implications of specific arguments. And staying constantly in touch with general principles of the law helps present such arguments with greater effectiveness. Therefore, I think students would benefit immensely from paying attention to the fundamentals of general subjects instead of rushing through them. It would also help in the long run to having a basic understanding of economics and accounting.

This applies all the more to students of law who come from an engineering or pure sciences background. Although I don’t think law is meant to be taken up only by students from commerce or humanities streams (since I am engineer-turned-litigator myself), I do believe engineers and science grads in particular must invest more efforts in understanding the spirit of the law by systematically and rigorously examining theories of law and principles of common law. Engineers and science grads can certainly bring to the law skillsets and attitudes which are unique to them, but it is also imperative to “acclimatize” themselves to the dialectics of the law and its parlance.

When they do so, they will not only find greater acceptance in the fraternity, but will also perhaps be rightfully heard first on areas such as patent litigation given their training in technology. This also has a critical and positive consequence for the quality of discourse on patents. In the last few years, although the level of IP awareness has increased in India, the discussion on patents seems limited to broad and generalized propositions which may be attributed to lack of training in science, and negligible or no experience in the practice of the subject on the part of certain commentators. There are notable exceptions to this trend, but by and large the reluctance to deal with specifics probably stems from a clear paucity of training and experience.

I personally believe that the bar on academics from practising the law must also be held significantly responsible for this trend, which may not be peculiar to the patent discourse. As long as this bar remains in force, academics will be deprived of the opportunity of sharpening their perspectives through practice. Until such time this bar is lifted and even after, patent litigators with training or experience with technology must play a greater role in shaping the discourse on patents and in volunteering with realistic policy initiatives. This will hopefully bring about a more nuanced discussion on the subject. I must clarify that none of these suggestions are meant to claim an exclusive space for litigators with scientific training because there are patent practitioners whose lack of formal scientific training has not come in the way of professional brilliance.

With this, I wish everyone a Happy and Prosperous New year! May we learn more and be blessed with opportunities to apply what we learn!

Division Bench of the Delhi High Court on Section 8 of the Patents Act and Judgment on Admission of its Violation

On November 7, 2014, the Division Bench of the Delhi High Court pronounced its 23-page verdict in Sukesh Behl & Anr vs. Koninklijke Phillips Electronics. The issue before the Division bench in this case may be broken down as follows:

a. In assessing compliance or alleged violation of Section 8 of the Patents Act, 1970 by a patentee in the context of a revocation proceeding under Section 64(1)(m), does the Court have the power to exercise its discretion to delve into the materiality of the violation and the bona fides of  the patentee?

b.   Does the presence of “may” in Section 64(1) vest the Court with the power to not revoke a patent despite arriving at the conclusion that the patentee has not complied with the requirements of Section 8? In other words, is the “may” a “may” or a “shall”?

c.    Can an admission of violation of Section 8 lead to a judgment on admission under Order 12 Rule 6 of the CPC?

This context is important since the Court was not seized of the effect of prima facie non-compliance of Section 8 by a patentee on his entitlement to an interim injunction under Order 39 Rules 1 and 2 of the CPC. Simply stated, the standards applied and the considerations that go into are significantly different when analyzing the issue of Section 8 compliance in the context of judgment on admission and an application for interim injunction, and this is a view that I agree with.  

To this extent, there is no inconsistency between the earlier decision of the Delhi High Court on Section 8 in Chemtura Corporation vs. Union of India (2009), wherein Justice Muralidhar had held that a prima facie violation of Section 8 poses a credible challenge to the validity of the patent and hence disentitles a patentee to the grant of an interim injunction. This view has been endorsed by the Division Bench in paragraph 39 of the Phillips decision, which is reproduced below

“39. In Chemtura Corporation Case (supra), this Court was dealing with grant of injunction under Order XXXIX Rule 1 and 2 of CPC. Having recorded a prima facie satisfaction that there had been a failure by the plaintiff to comply with the mandatory requirement of Section 8(1), this Court held that the interim injunction in favour of the plaintiff cannot be continued. The question whether the power conferred under Section 64(1) of the Patents Act for revocation of the patent is discretionary or mandatory neither fell for consideration nor adjudicated by the Court in the said decision. Therefore, the learned Single Judge had rightly distinguished Chemutra Corporation Case (supra) relied upon by the learned counsel for the appellants/defendants.”

Now let’s proceed to the Division Bench’s discussion on the issues enumerated above.

In the facts of this case, the Defendant/ Appellant, Maj. (Retd) Sukesh Behl, alleged in his written statement that Plaintiff’s patent IN218255 was liable to be revoked under Section 64(1)(m) for failure to disclose to the Controller of Patents, information relating to its corresponding foreign patent applications required under Section 8.

In response to this allegation, the Patent agent of the Plaintiff in his letter dated 14.09.2012 (subsequent to the institution of the suit on 24.07.2012) informed the Controller of Patents that certain details regarding the corresponding foreign patents applications had not been disclosed during the prosecution of the Indian patent and requested that the said information be taken on record. Along with the said letter, an affidavit was filed stating that the agent had received documents relating to the status of the said foreign applications way back in 2004. However, he had inadvertently failed to take note of information which was printed at the back of the first page of the documents received by him. In other words, according to the Plaintiff, the omission was not deliberate and certainly not at the behest of the Plaintiff. 

As a consequence of the admission of omission made by the Plaintiff’s patent agent, the Defendant/Appellant moved for a judgment on admission under Order 12 Rule 6, seeking a decree of revocation in the Counter-claim filed by him under Section 64. The submission of the Defendant was that in light of the unequivocal admission by the Plaintiff, contravention of Section 8 was manifest which must lead to revocation of the patent in the Counter-claim without the need for further examination at trial. Further, since there is no room for exercise of discretion under Section 64(1)(m) where the situation relates to failure to disclose information (as opposed to a situation where false information has been furnished), there is no discretion available to the Court to not revoke a patent if failure to disclose information is established. Since the Plaintiff itself had admitted to this failure in an affidavit, the patent deserved to be revoked all the more without any need for enquiry on the aspects of willful suppression and the materiality of the information suppressed.

The Patentee/Plaintiff on the other hand contended that that the revocation of a patent is not warranted unless the Court finds that the omission was deliberate and the information not submitted was material to grant of patent. Since such adjudication requires a detailed examination, at trial, the Plaintiff contended that the Single Judge was right in dismissing the application under Order 12 Rule 6. 

In this context, readers may recall my earlier post on Section 8 in the context of the Roche vs. Cipla decision of Justice Manmohan Singh, wherein I had said the following:

“1. Is there any room for exercise of discretion under Section 64(1)(m) once violation of Section 8 is established to the satisfaction of the Court or the IPAB?

2. Assuming there exists room for exercise of discretion, did the Learned Single Judge take a reasoned approach in exercising his discretion to not revoke the patent? In other words, has the Single Judge sufficiently reasoned as to why he was of the opinion that the patent on Erlotinib did not deserve to be revoked “solely on the ground of non-compliance” of Section 8?”

  

I had further gone on to say the following:

“Section 64(1)(m), when read with the preamble, reads as follows:

64. Revocation of Patents: (1) Subject to the provisions contained in this Act, a patent, whether granted before or after the commencement of this Act, may, [be revoked on a petition of any person interested or ofthe  Central  Government  by  the  Appellate  Board  or  on  a  counterclaim  in  a  suit  for infringement of the patent by the High Court] on any of the following grounds, that is to say—

(m)  that the applicant for the patent has failed to disclose to the Controller the information required by section 8 or has furnished information which in any material particular was false to his knowledge;

The Learned Single Judge placed reliance on the “may” in the preamble to sub-section (1) to conclude that the “may” provided for exercise of discretion by the Court or the IPAB. The question is, is the “may” to be interpreted as “shall”, or as “may”?

It needs to be pointed out that the preamble, and consequently the “may” in Section 64(1) is applicable equally to all 14 grounds of revocation which are enumerated under Section 64(1). Therefore, it would be difficult and probably even untenable to argue that certain grounds are more serious (or more equal) than the rest.

In other words, it may not be possible to argue that violation of Section 8 is a minor ground compared to other so-called “substantive” grounds such as novelty or obviousness. Specifically, it may not be possible to argue that the “may” is a “shall” for certain grounds, but remains a “may” for certain other grounds.

Further, there are two sub-grounds within Section 64(1)(m) itself, namely:

A. that the applicant for the patent has failed to disclose to the Controller the information required by section 8; or

B. that the applicant has furnished information which in any material particular was false to his knowledge

These two grounds refer to two different circumstances. In the first circumstance, there is a failure on the part of the applicant to disclose information sought under Section 8. Specifically, the failure must relate to details of foreign application sought in Form 3. Such failure need not be deliberate or calculated. There just needs to be failure to disclose. Therefore, it could be said that the scope of analysis is restricted to establishing whether or not there was a failure to disclose by the applicant.

Before we jump to any conclusion, it needs to be pointed out that what amounts to “failure to disclose” is a subjective enquiry based on what constitutes sufficient disclosure under Section 8. It could also be argued that subjectivity allows for exercise of discretion. However, the exercise of discretion is limited to evaluating the adequacy of disclosure, and no more. If the applicant has disclosed the details sufficiently as sought in Form 3, there is no question of violation of Section 8.

However, if the disclosure is less than adequate, it must be concluded that the applicant/patentee has indeed violated Section 8. Once this conclusion is reached, there appears to be no more room for exercise of discretion. In other words, once failure to disclose is established, the “may” in the preamble to sub-section (1) of Section 64 cannot be used to further exercise discretion. Revocation appears to be the only legal and  logical course of action.

As regards the second circumstance which refers to willfully furnishing false information, it is clear that there must be a positive act on the part of the applicant to supply information which he knows to be false in a “material” way. Simply put, the false information must necessarily have a bearing on the decision of the Controller to grant or refuse a patent. Obviously, in this circumstance, the Controller has the power to exercise his discretion to understand whether the false information was “material” in any way to the outcome of the examination process.

To summarize, on a strict reading of relevant portions of Section 64(1)(m), it could be argued that there does not exist a room for exercise of discretion once failure to disclose information under Section 8 is established. Therefore, since the Learned Single Judge had arrived at a finding of contravention of Section 8 by the patentee, I don't think the Court had the option of not revoking the Erlotinib patent.”

  

Applying this logic to the Phillips case, it could be said that the Plaintiff’s patent is liable to be revoked for failure to disclose information in light if its own admission. However, it must also be noted that such revocation was being sought summarily under Order 12 Rule 6. Therefore, given the grave implications for the patentee, a Court would not be wrong in coming to the conclusion that the issue deserved deeper analysis at trial.

Now let us see what the Division Bench had to say. In paragraph 25, the Court notes, based on the affidavit of the Plaintiff's patent agent, that certain information was inadvertently omitted/not disclosed by the Plaintiff’s patent agent to the Indian Patent Office, despite having received the information from the Plaintiff. In such a situation, the Court ought to have held that only at trial it may be understood as to whether the failure of a patent agent to disclose information amounts to failure of the patentee to furnish information under Section 8. This would have been a better issue to frame and decide. Instead, in paragraph 27 of the decision, the Court goes on to observe that the issues that need to be looked into at trial are the alleged suppression and the materiality of the suppressed information. In my humble opinion, although the Court was perhaps correct in taking the view that the issue deserved a trial, it has erred in its appreciation of Section 64(1)(m) and the latter's application to the facts of the case. Simply put, the conclusion may be correct but the reasoning is flawed.

The Division Bench then dwelt on the interpretation of the word ”may” in Section 64(1). Based on a host of precedents, the Court took the view that the “may” was indeed a may which has the consequence of conferring discretion upon the Court while exercising the power of revocation. On this too, I humbly disagree with the Court as stated in my earlier post, the “may” in Section 64(1) is applicable equally to all 14 grounds of revocation which are enumerated under Section 64(1). Therefore, it would be difficult and probably even untenable to argue that certain grounds are more serious (or more equal) than the rest. In other words, it may not be possible to argue that violation of Section 8 is a minor ground compared to other so-called “substantive” grounds such as novelty or obviousness. Specifically, it may not be possible to argue that the “may” is a “shall” for certain grounds, but remains a “may” for certain other grounds.

    

Although testy, I’d like to volunteer with another argument. The Indian Patents Act, 1970 perhaps is inspired by its British counterpart and the use of “may” in certain instances in British English is synonymous with “shall”. In other words, the use of the word “may” is meant to be assertive or in the form of a directive, with no room for exercise of discretion. This must be considered in interpreting the language of the Indian statute. Therefore, given that the “may” used in Section 64(1) applies to both substantive and procedural grounds, it may not be possible to selectively construe the “may” as “shall” for substantive grounds and “may” for procedural grounds.

From the above, it is clear that although in the facts of the case perhaps a trial was necessary, the DB’s interpretation of Sections 8, 64(1) and 64(1)(m) do not do justice to the express language of the provisions and intent of the Legislature. Critically, this is bound to affect the adjudication of the appeal in the Roche-Cipla case where Section 8 has been agitated vigorously by the defendant Cipla. In that case, although the Learned Single Judge concluded that the patentee had violated Section 8, his Lordship ruled that the "may" in Section 64(1) allowed him to not revoke the patent despite the violation. Therefore, the DB's decision could deprive Cipla of an otherwise legitimate ground of appeal. I, for one, will wait to see how the DB's decision is applied in pending matters by Courts and the IPAB.

Standing Committee on Patents of the WIPO to meet from November 3-7, 2014

The Twenty First Session of the WIPO's Standing Committee on the Law of Patents will be held from November 3-7, 2014 in Geneva. The draft Agenda is here. Among the topics that are scheduled to be taken up are exceptions and limitations to Patents Rights, and confidentiality of advice from patent advisors. Both these topics are of interest to me personally, and I hope to read the final report of the session. 

Making Sense of the Supreme Court’s ratio in Dr.Aloys Wobben & Anr. v. Yogesh Mehra & Ors.

Recently, I had the occasion to interpret the judgment of the Supreme Court in Dr.Aloys Wobben & Anr. v. Yogesh Mehra & Ors., wherein it was seized of the following issue- whether under Section 64 of the Patents Act, 1970, a ‘person interested’ has the option of concurrently invoking the jurisdictions of both the High Court in a counterclaim for revocation of a patent, and the IPAB in a revocation petition against the same patent? I had earlier blogged on the dispute here and here.

Although the central findings of the Supreme Court’s decision have been touched upon elsewhere by others, I intend to make sense of lesser-discussed observations of the Apex Court. The discussion of the Court begins at Paragraph 17. In the said paragraph, the Court interprets the contingent clause in the preamble of Section 64 (“Subject to the provisions contained in this Act…”) to mean that the provision is subservient to other provisions of the Act. In other words, it is not the sequence of initiation of proceedings that would dictate the outcome/conclusion, but the existence of a conflict between a proceeding under Section 64 and a proceeding initiated under any other provision of the Act.

For instance, if a person interested institutes a post-grant opposition under Section 25(2) against the grant of a patent, he is barred under law from challenging the vires of the patent again in a subsequent revocation petition or counterclaim under Section 64. This explains the Court’s observation in paragraph 18 that “If any proceedings have been initiated by “any person interested”, under Section 25(2) of the Patents Act, the same will eclipse the right of the same person to file a “revocation petition” under Section 64(1) of the Patents Act. And also, to invoke the right granted under Section 64(1) of the Patents Act, to file a “counter-claim” (in response to an “infringement suit”, to seek the revocation of a patent).”  

The same conclusion has been reiterated in paragraph 26 wherein the Court has observed as follows:

“Firstly, if “any person interested” has filed proceedings under Section 25(2) of the Patents Act, the same would eclipse all similar rights available to the very same person under Section 64(1) of the Patents Act. This would include the right to file a “revocation petition” in the capacity of “any person interested” (under Section 64(1) of the Patents Act), as also, the right to seek the revocation of a patent in the capacity of a defendant through a “counter-claim” (also under Section 64(1) of the Patents Act).” (Emphasis supplied)

What is to be critically noted is that a post-grant opposition under Section 25(2) eclipses only “similar rights/grounds” which are available under Section 64 and not those grounds which are not provided for in the former but are available in the latter. Although the Court has not dealt with such an eventuality, it could be argued (not necessarily successfully) that a person interested may concurrently institute a post-grant opposition and also file a counterclaim on grounds not available under Section 25(2). 

Yet another matter of concern are the observations of the Court in paragraph 18 since the Court seems to have come to the conclusion that the grant of a patent is merely the finalization of the Controller’s decision to bestow a patent on an applicant, but does not translate to the grant of a right to an applicant. In other words, according to the Court, a patentee, although having been granted a patent, does not have a right worth enforcing until the expiry of the post grant opposition period i.e. a year from the date of publication of grant of the patent. Does this mean that a patentee with a patent in his name in the register of patents cannot institute a suit for infringement of the patent until the expiry of the post grant opposition period? On this point, following is the observation of the Court:

“Therefore, it is unlikely and quite impossible, that an “infringement suit” would be filed, while the proceedings under Section 25(2) are pending, or within a year of the date of publication of the grant of a patent.”

Unfortunately, the above conclusion is ambiguous since it does not appear to be based on the law and seems to be driven more by “practical” considerations which may not even hold water in all situations. Further, in arriving at this conclusion, the Hon’ble Apex Court has not discussed those provisions of the Act which deal with institution of suits for infringement, leaving its “practical” finding bereft of concrete statutory support.

It remains to be seen in the times to come if the decision of the Court has raised more questions than it has answered. Comments and corrections are welcome.           

Distinction between Falsification and Falsely Applying a Trademark

Section 102 of the Trademarks Act 1999 defines as to what constitutes falsification of a trade mark and falsely applying a trade mark. Section 103 prescribes penalties for falsification and falsely applying a trademark. Both provisions are part of Chapter XII of the Act which deals with Offences and Penalties. Reproduced below is Section 102:

102. Falsifying and falsely applying trade marks.—

(1) A person shall be deemed to falsify a trade mark who, either,—

(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark; or

(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.

(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the assent of the proprietor of the trade mark,—

(a) applies such trade mark or a deceptively similar mark to goods or services or any package containing goods;

(b) uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark.

(3) Any trade mark falsified as mentioned in sub-section (1) or falsely applied as mentioned in sub-section (2), is in this Act referred to as a false trade mark.

(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or services, the burden of proving the assent of the proprietor shall lie on the accused.

Based on a clear reading of sub-section 1 of Section 102, it is evident that the said sub-section deals with “making” of a mark which is either identical or deceptively similar to an existing trade mark (registered or unregistered, as stated in the definition of a trademark in Section 2(1)(zb)(i) for the purposes of Chapter XII). It must be noted that the reference here is to the making of the mark itself and not to its application to goods or in relation to services (“application” of the trade mark for the purposes of this Chapter is enumerated in Section 101). Therefore, the act of manufacture of the mark without the consent of the proprietor of the trade mark is deemed as falsification of the trade mark. Further, the said sub-section also includes within the scope of falsification any unauthorized alteration, addition or effacement of a genuine trade mark.

In contrast, sub-section (2) of Section 102 deals with falsely applying/using an existing trade mark or its deceptively similar variant without the assent of its proprietor. Sub-section (3) of Section 102 classifies both a falsified trade mark and a falsely applied trade mark under the category of “false trade marks”.  It must be noted that the prohibition under Section 102 does not appear to be restricted to the class of goods or services in connection with which the proprietor of the genuine trade mark uses the trade mark. In other words, a person who applies/uses a false trade mark in any class of goods or services could attract the prohibition of Section 102. To this extent, the scope of the bar under Section 102 appears to be wider than Section 29.  

Further, sub-section (4) of Section 102 takes the position that when an accused is confronted with the use of a false trade mark, the lack of the proprietor’s consent shall be presumed and the burden is on the accused to rebut the said presumption. That said, sub- section (1) of Section 102 makes a reference to a “deceptively similar” mark and not merely a similar mark. Does the use of the word deceptively require the proprietor of the mark to establish malafide intent on the part of the accused to deceive the public to make a case under Section 102? Considering that the use of a deceptively similar mark also constitutes infringement within the meaning of Section 29 (if the mark is registered), it would be interesting to understand the practical evidentiary import of the words deceptively similar. I will discuss this in the next post.    

Does Section 22 of the Designs Act,2000 Limit Damages in a Suit to INR50000?

It appears there is some confusion among practitioners regarding the interpretation of Section 22 of the Designs Act, 2000, which deals with piracy of registered designs and reliefs available to the owner of a registered design. Specifically, there seems to be some doubt with respect to the maximum value of damages that the owner of a registered design may claim in a suit for design infringement. One school of thought is of the opinion that Section 22(2) and the first proviso thereunder limit/cap damages that a design owner may seek in a suit to INR 50,000/-. Is this truly the case?

A clear reading of each of the sub-clauses of Section 22(2) reveals the following:

1)  The provision provides two options/reliefs to a registered design owner in the event of infringement of a design. The first relief is where the design owner may recover a maximum of INR 25,000/-.from the infringer for “every contravention” in the form of a contract debt

2) The second relief is one which permits the owner of the design to institute a suit for damages and permanent injunction against the infringer   

3) It is to be noted that the reliefs are disjunctive in nature which means the owner of the design has to elect between the two

4) Critically, what is to be noted is that the limit/cap of INR 50,000/- for “every design” prescribed in the first proviso is restricted to the first relief and does not apply to the second relief. Simply put, there is no pecuniary limit whatsoever on damages that a registered design owner may seek should he opt to institute a suit for damages and injunction under the second relief

If this is the case, how does one interpret the first relief and the first proviso together? Based on a combined reading of Section 22(2)(a) and the first proviso, it follows that when the design owner opts for the first relief by way of a contract debt, although, he is entitled to recover  maximum of  INR 25,000/-  from the infringer “for every contravention”, it is to be noted that he may recover a maximum of INR 50,000/- for infringement of a design regardless  of the number of contraventions with respect to the design. In other words, under the first relief, the statutorily prescribed limit is INR 50,000/- for infringement of a single design regardless of the number of contraventions. Therefore, if in the same infringing act, the infringer violates multiple design registrations of the same design owner, the owner is entitled to recover a maximum of INR 50,000/- for each of the designs. 

However, this raises a few more questions. Since the first relief does not provide for an injunctive relief, does it mean that after the recovery of a maximum of INR 50,000/- for infringement of every design, the design owner does not have the right to recover more money in the event of a subsequent infringement? If yes, where is the incentive for the design owner to opt for the first relief if it does not act as a deterrent to the infringer? Importantly, if with respect to a first cause of action the design owner opts for the first relief, is he barred from instituting a suit for damages for a subsequent cause of action/infringement by the same infringer?

I look forward to comments and corrections from the readers.