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Patent: A Basic View

The word Patent was derived from the Latin term Patere, which means to lay open. Patent simply means a right given to anyone who invents something new, useful, and non-obvious. It is one of the forms of Intellectual Property Rights, which means it is an 'exclusive right' given to the inventor.

The purpose behind granting patents is to ensure that it encourages inventors to work in a particular field and get exclusive benefits over their inventions. Mere discovery of a substance that was already present in nature cannot be considered as a Patent; only significant improvements done in previous inventions can be considered.

A Patent is a statutory right for an invention granted for a limited period of time to the patentee by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent.

The Patent system in India is governed by the Indian Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 and the Patents Rules, 2003. The Patent Rules are regularly amended in consonance with the changing environment, most recent being in 2016

Non-Patentable Inventions:

Section 3 of the Indian Patents Act, 1970 provides the following list of non-patentable inventions:
  1. An invention that is frivolous or which claims anything contrary to well-established natural laws.
  2. An invention who's primary or intended use of would be contrary to law or morality or which causes serious prejudice to human, animal, or plant life or health or to the environment.
  3. Mere discovery of scientific principle or theory.
  4. Mere discovery of a new form of a known substance which does not enhance the efficiency of that substance or mere discovery of new property or now use of a known substance or mere use of a known process, machine, or apparatus unless such a known process results in a new product.
  5. A substance obtained by a mere admixture which results only in the aggregation of the properties of the components or a process for producing such substance.
  6. The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way.
  7. A method of agriculture or horticulture.
  8. Any process for the medicinal, surgical, curative, prophylactic, or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products.
  9. An invention related to plants and animals other than microorganisms.
  10. A mathematical or business method or a computer program per se or algorithms.
  11. Work related to literature, drama, music, art, and any other aesthetic creations including cinematography and television products.
  12. A mere scheme or rule or method of performing mental acts or playing games.
  13. Presentation of information.
  14. Topography of integrated circuits.
  15. An invention that in effect is traditional knowledge or is based on the properties of traditional knowledge.
  16. An invention relating to atomic energy.

Who can be an inventor of a patent?

Any person who claims to be the first inventor of the invention or any person who is assigned by the first inventor of the invention or any legal representative of the deceased person who immediately before his death was entitled to make such an application.

Essential elements for patentability:
  1. Novelty- the claims of the invention to be patented should be unique and new.
  2. Non-obviousness- the invention must be non-obvious or a significant improvement to the previous one.
  3. Industrial application- the invention must have industrial application or be useful to the public to be patented. It must not be used in any illegal work and solely in a bonafide manner.

Rights of Patentee

  1. Right to exclusivity:
    The patentee has exclusive right to prevent the third party without the consent to make use, exercise, and offer to sell, or distribute the patented product or the process.
  2. Right to grant license:
    The patentee has the power to assign or grant the license or deal with a patent for a consideration. In case, there is more than one owner of the patent, the co-owner can assign his share of the patent to grant the license in respect thereof with the prior consent of the other co-owner and permission by the controller.
  3. Right to surrender:
    The patentee has the right to surrender the patent by giving notice to the controller. The controller by way of advertisement advertises the offer to the people whose name is in the register apart from the patentee. Any person interested in the offer may intimate the controller and further it should be intimated to the patentee about the same. If the controller is satisfied after hearing the patentee and opposition (if any) then the patent should properly be surrendered and the patentee may accept the offer and by order, revoke the patent.
  4. Right to Sue:
    If there is a violation of any right of the patentee conferred by the grant of a patent, then in such case, the patentee has a right to sue in the District Court having jurisdiction to try the case.
Patent protection is a territorial right which means that it can only be applied in the country where it is granted. Hence, legal action against infringement can be taken only in that country. For global patent protection, one must apply in every country. To ease the process of applying to each and every country, Patent Corporation Treaty provides for the protection of patents in those countries that are members of the treaty by submitting a single patent application.

After the grant of patent, every patentee has to maintain the patent by paying renewal fee every year as prescribed. For first two years, there is no renewal fee. The renewal fee is payable from 3rd year onwards. In case the renewal fee is not paid the patent will be ceased.

Term of Patent

A patent is granted for a term of 20 years starting from the date of filing of the patent application. After the expiration of 20 years, anyone can use the patent without the prior permission of the inventor.

Obligations of Patentee
  • Use of patents by Government:
    A patent invention can solely be used by the government. Also, the government has the power to restrict or prohibit the use of the patent under certain circumstances. A patent in the field of medicine or drug development can be imported by the government without the permission of the patentee or payment of royalties.
  • Compulsory licensing:
    If the purpose of the invention is not fulfilled, then the controller may grant a compulsory license to any applicant who wants to make the patent work, and fulfil the purpose. It is granted to keep a check on the fair use of the invention, and also to work for the betterment of the public.
  • Revocation of patent:
    If the invention is not used for the betterment of the public or yields unsatisfactory results, then in that case a patent can be revoked.
  • Invention for defense purposes:
    If the Patent controller thinks that the patent application filed is related to the field of defense or if the application falls under the class classified by the Central Government, then the controller may give directions for prohibiting or restricting the publication of information concerning the invention.
  • Restored patents:
    Once lapsed, the patent may be restored. But in this case, there are few restrictions imposed on the rights of the patentee. The patentee has no authority to file a case for infringement that was made between the period of the date of infringement and the date of advertisement for restoration of patent.

Patent Infringement

Patent infringement means unauthorized use, production, sale, or offer of sale of the invention by a person who is not authorized to do so. The idea behind patent infringement is that it prohibits unauthorized parties from using the patent invention without the owner's permission. When a person who is not authorized uses the patent invention in the same form as prescribed in the patent, it amounts to infringement. Infringement occurs in two ways those are direct and indirect infringement.

Direct patent infringement- It is the basic form of infringement, where the unauthorized person uses or distributes, or sells the patent invention in the same form.

Indirect patent infringement can be categorized as follows:

  • Infringement by inducement:
    An act done by a third party who causes another person to infringe the patent directly is called infringement by inducement.
  • Contributory infringement:
    Infringement of items related to a patent invention or utilizing of the materials used in the patent invention is known as contributory infringement.
  • Willful and literal infringement:
    Under willful infringement, there is a clear intention of the person that he knew about the patent, and he chose to infringe it. Literal infringement involves the exact copy of the patented items to be sold, used, distributed, etc.
  • The doctrine of equivalent infringement:
    If the infringing item is not the same as the patented item, but it produces the same result as that of the patented item or if the new product is more efficient than the patented product, or if the new product is not the same as the patented item but it performs the same function, resulting in the same outcome then in all the above cases it will be considered as infringement of the patent.

Remedies For Patent Infringement:

  • Declaration:
    The patentee may claim a declaration that the act of the infringer is declared unlawful and it can be declared that the patentee is entitled to get compensation for the infringement.
  • Injunction:
    This relief can be claimed under the specific relief act, and it can be granted by the civil court against the infringer.
  • Damages:
    The patentee is entitled to claim liquidated or unliquidated damages for infringement against the infringer.
  • Accounts for profit:
    The patentee can claim the profit that the infringer received for violating the patent.
  • Cost:
    The patentee can claim the cost incurred for filing of suit.

A patent is an intellectual property appointed to the person who invents something new, useful, and non-obvious. It can also be said that it is a token of recognition given to the person who is the inventor. The person has exclusive rights over the invention for a period of 20 years, and in violation of this right, the person can file a case against the infringer. If the purpose of the invention is not fulfilled, then any person can contact the controller for compulsory licensing. This helps as a tool to keep a check on the applicability of the invention.

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