India Patent, under the Act 1970, is a grant from the Government to the inventor for a limited period of time, the exclusive right to make use, exercise and vend his invention. After the expiry of the duration of patents, anybody can make use of the invention.
What is an invention
Invention means any new and useful
art, process, method or manner of manufacture
machine, apparatus or other article
substance produced by manufacture
and includes any new and useful improvement of any of them, and alleged invention
Therefore an invention is the creation of intellect applied to capital and labour, to produce something new and useful. Such creation becomes the exclusive property of the inventor on grant of patent.
Application for a Indian Patent
An application for a patent may be made by the actual inventor of the invention, or an assignee of the right to make an application or a legal representative of either.
It is the person who first applies for a patent who is entitled to the grant. A prior inventor of the invention who applies subsequently will not get the patent as against the first applicant.
FORM OF APPLICATION
- An application for a patent in the prescribed form along with the prescribed fee should be led in the patent office and every application shall be for one invention only.
- Where the application is made by virtue of assignment of right to apply, proof of such right shall be filed.
- The application shall state that the applicant is in possession of the invention and give the name of the owner claiming to be the true and first inventor and where the person so claiming is not the applicant the application shall contain a declaration that the applicant believes the person so named to be the true and first owner.
- Every such application is to be accompanied by a provisional or complete specification.
- Where the application is accompanied by a provisional specification, a complete specification should be filed within twelve months from the date of filing the application. If this is not done the application shall be deemed to be abandoned.
- The complete specification should fully describe the invention and the method by which it is to be carried out. It should disclose the best method of performing the invention known to the applicant and end with a claim or claims defining the scope of the invention for which protection is claimed.
PROCEDURE ON RECEIPT OF APPLICATION
- The application filed is referred by the Controller to the Examiner who makes an inquiry to see whether it complies with the requirements of the Act and Rules, whether there is any lawful ground of objection of the grant of the patent, and whether the invention has already been published or claimed by some other person.
The examiner makes a search in the patent office for specifications of prior applications and Patents to see whether the same invention has ready been published or claimed or is the subject matter of existing or expired patens.
A report is accordingly made to the Controller within 14 months form the date of reference.
- The patent office after examination of the application will communicate to the applicant the objections, if any to the grant of a patent. If the objections are not satisfactorily met the Controller of Patents after giving an opportunity of hearing to the applicant will refuse the application.
- If the applicant satisfactorily removes the objections the controller will accept the complete specification and advertise it in the official Gazette.
- A request for sealing the patent can be made not later than the expiration of six months from the date of publication.
The Patent head office is at Calcutta and there are branch offices at Bombay, Delhi and Madras.
Rights of patentee
The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property.
The patentee can sell the whole or part of this property (Patent).
He can also grant license to other(s) to use the patented property.
He can also assign such property to any other(s).
Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually.
PERIOD OF PATENT
- In respect of process patents relating to drugs and food, the term is five years from the date of sealing the patents or seven years from the date of the patent whichever is shorter.
- In respect of all other patents the term is fourteen years from the date of the patent. A patent is kept alive only by paying the renewal fee from time to time
USE OF PATENTED INVENTION BY THE CENTRAL GOVERNMENT
The grant of patent confers the exclusive right of use on the patentee for commercial gain but the Act recognises that the Central Government may use any invention even without the payment of royalty to the inventor.
The idea is that the invention can be put to use for general public benefit by the government in certain circumstances when the patentee would have to forego his commercial gain in the general public interest.
SOME RESTRICTED USE OF PATENTED INVENTION PERMISSIBLE UNDER THE LAW
The essence of a patent is conferring of the exclusive right on the patentee. Yet some restricted use of a patented invention by a person other than the patentee is permissible under the law. For such instance, use of a patented invention is permissible for research or experimental purposes or for imparting knowledge or instructions to pupils.
Infringement of Patent Law
The right conferred by the Patent is the exclusive right to make, use, exercise, sell or distribute the invention n India. Infringement consists in the violation of any of these rights.
The act expressly provides that use by a person other than the patentee, patentee's assignee or licensee would be an infringement of the patent and as such illegal.
REMEDY FOR INFRINGEMENT OF PATENT
An action for infringement must be instituted by way of a suit in any District Court or a High Court having jurisdiction to entertain the suit.
The plaintiff on satisfying the court about infringement of his patent would be entitled to the following relief:
- Interlocutory injunction
- Account of profits
The Plaintiff may at the commencement of the action move for an interim injunction to restrain the defendant from committing the acts complained of until the hearing of the action or further orders. The plaintiff should make out a prima facie case and also show that the balance of convenience lies in his favour.
In assessing the damages the important question is what is the loss sustained by the patentee. The loss must be the natural and direct consequence of the defendant's acts. The object of damages is to compensate for loss or injury.
ACCOUNTS OF PROFITS
Where a patentee claims the profits made by the unauthorised use of his patent, it is important to ascertain how much of his invention was appropriated, in order to determine what proportion of the net profits realised by the infringer was attributable to its use.