What is a Patent?
A Patent implies the granting of a property right by a sovereign authority to an inventor. A Patent provides the inventor an exclusive right for an invention up to a certain period in exchange for a complete disclosure of the invention. These rights prohibit others from making, selling, or using the invention without permission for a while.
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An invention is considered new if, on the day of application, any such invention is not known to the public in any form; i.e., writing, oral, or any other form. Anything will not be considered an invention if such a thing is already known in the public domain. The term of every patent granted is 20 years which is counted from the date of filing of the patent application. Since a patent is only a territorial right, it can be applied only in the country where it has been granted. Therefore, any legal proceedings against infringement of a patent can only be taken in that country. The Patent Corporation Treaty (PCT) guides applicants in seeking patent protection internationally for their inventions through a single patent application where a patent can be filed in a large number of countries.
What cannot be patented?
- Frivolous Inventions: Those inventions which are contrary to public order, morality, public health, environment, etc.
- Mere discovery of scientific principles or any new form of substance that already exists in nature.
- Any method related to agriculture or horticulture.
- Aesthetic creations such as literacy, dramatic, musical or artistic work.
- Traditional knowledge and presentation of information.
The Patents Act, 1970
Section 2 (m) of the Patents Act, 1970 defines the term Patent as a patent for any invention granted under this act. The main objective of the Patents Act, 1970 is to protect and safeguard the intellectual products.
Rights and Obligations of the Patentee
A grant of Patent in India gives the Patentee an exclusive right to utilize or make the patented invention. Certain rights and obligations of a Patentee are enshrined under The Patent Act, 1970.
Rights of Patentee
- Right to Exploit Patent: In India, the patentee is granted the right to use, market and distribute the protected goods or exercise the method if the patent is for a person. The right given can be provided either by the patentee himself or by his agent or licensees. Patentee can only exercise the rights during the term of the patent.
- Right to Grant License: Patentee has a discretion to grant license to third parties for the purpose of distributing and producing the protected goods. For a license to be legitimate and valid, it must be in written form and lodged with the Patent authority.
- Right to Surrender: Patentee has the power to abandon the patent after appropriately asking for authorisation from the controllers. The controller transfers ownership only after evaluating the claims of the parties. The application for surrender is also mentioned in the Official Gazette to enable interested persons to oppose.
- Right to Sue for Infringement: Patent Infringement refers to any breach of a patent holder’s rights. Hence, patentee has a right to institute proceedings for infringement of the patent and if the defendant is found guilty of infringement, the court may order compensation or a long term order.
Obligations of Patentee
- Government use of Patents: A patented invention may be used by the government for its use only and the patent holder is prohibited from using the innovation for personal gain or claiming a monopoly over commercial activities under this barrier. In case of a patent in respect of medicines or drugs, it may be imported by the government for its own use or for distribution in any hospital, dispensaries or medical institutions run by or on behalf of the government.
- Revocation of Patent: In cases of unsatisfactory result to the demand of public in respect of the patented invention, a patent may be revoked in such cases.
- Invention for Defence Purpose: In certain cases, publications of inventions are restricted by directions of controller, hence are subjected to certain secrecy provisions. In continuation of such prohibition of patented invention, the application is debarred for using it and it might be used on payment for royalties by the Central Government.
- Restored Patents: A patent can be restored once lapsed, provided that few limitations are imposed on the right of the patentee.
Grounds for Opposition
An application for a patent can be opposed by either a prior grant or a subsequent grant by any person on the grounds specified in the provisions of the act. Apart from the grounds mentioned in the act, no other grounds can be taken to oppose the patent. Some major opposition grounds are as follows:
- The invention was already published before in India or elsewhere or was claimed previously in India.
- The invention is a part of the prior public knowledge, public use, or traditional knowledge of any community.
- The invention is obvious and it lacks an inventive step.
- The invention does not constitute an invention as per the meaning given in the act or the invention is not subjected to be patented under the act.
- Providing false information or fail to furnish information.
Patent Infringement
Patent infringement occurs when another party makes unauthorised use, production, sale or offer of sale of a subject matter without the patent holder’s permission. The idea behind patent infringement is that unauthorised parties are not permitted to use patent without the patent holder’s permission. In the patent infringement cases, the court usually compares the subject matter covered under the patent with the subject matter that is used by the infringer. Infringement may occur directly or indirectly.
Remedies for Patent Infringement
The legal proceedings in Patent Infringement cases can result in significantly higher losses than other kind of lawsuits. The act here allows plaintiff to recover damages. In the cases of infringement, patent holders are entitled to several remedies.
- Injunction: Injunction is a stay order that stops the infringing party to stop making use of infringing product. It aims at preserving the patent’s value and preventing further harm to the patent holder. In order to obtain an injunction, the patent holder has an obligation to prove that their patent is valid and has been infringed by the defendant.
- Damages: The patent owner may obtain damages in respect of loss caused due to infringement.
- Seizure of Forfeiture of Infringing Goods: Court may order that the items determined to be infringing must be taken into custody, disposed of, or forfeited as deemed.
Conclusion
In conclusion, Patent Infringement is violation of the rights of a patent and different types of infringement need to be defended differently. It is very important for business to conduct proper research before filing for a patent in order to ensure that their invention is novel and non obvious. This in turn will help to minimise the risk associated with infringement.
Frequently Asked Questions (FAQs)
1. What is Patent?
Answer:
Patent [Section 2(1)(m)]: It defines patent as a patent for any invention granted under the act.
In general, Patent is a grant from government which gives patent holder an exclusive privilege of making, selling and using the invention for which a patent has been granted for a limited period of time; i.e., 20 years.
2. Does patent obtained in India gives worldwide protection? Is it possible to file an international application in India under the Patent Cooperation Treaty (PCT)?
Answer:
Since patents are territorial rights, the exclusive rights will be applicable only in the country where the patent has been filed and granted in accordance with the laws of that country or region. An application known as PCT application can be filed in India in patent offices located in Kolkata, Chennai, Mumbai and Delhi. All these offices act as Receiving Office (RO) for International applications.
3. What can be patented?
Answer:
An invention related to a product or process which is new, involving inventive steps and capable of industrial application can be patented. However, the list must not fall into categories of inventions that are non-patentable.
4. What is Patentable Invention?
Answer:
The act does not define the term; however, it can be said that patentable invention means invention for which patent can be granted as per the provisions of the Patents Act, 1970.
5. What is an Inventive Step?
Answer:
Inventive Step [Section 2(1)(ja)]: Inventive step means a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.