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.
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.
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.
The Patent head office is at Calcutta and there are branch offices at Bombay, Delhi and Madras.
The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as the owner of any other moveable property.
Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually.
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.
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.
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.
The right conferred by the Patent is the exclusive right to make, use, exercise, sell or distribute the invention in 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.
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:
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.
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.Copyright 2022 – Helpline Law
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