What is a Patent?
A patent is the exclusive right granted for an invention, which may be a product or process. The first patent was awarded in Italy in 1416, for a device for turning wool into felt. Soon thereafter, the Republic of Florence granted a patent to Filippo Brunelleschi in 1421 for his architectural device for a period of three years.
As of 2020 3.27 million patents exist. The types of patents granted range from the faintly ridiculous (a pillow designed to record snores, underpants designed to supress gas noises) to grossly successful (the Amazon one click patent where e commerce website allow customers to check out by using their customers saved credentials). Patents, when drafted and used correctly, can be the commercial backbone of any company.
India and Patents
India does not grant patent unless the invention satisfies the three fold test of novelty or non- obviousness, inventive step, and industrial applicability. Patents may be granted for product as well as processes. Section 3 of the Patent Act 1970 (hereinafter referred to as the Act) lays down an exhaustive list of invention types which cannot be patented. These include a method of agriculture or horticulture, a mere scientific principle formulation of an abstract theory and so on. Section 4 of the Act states that inventions relating to atomic energy cannot be patented.
Who Is Entitled To Get a Patent?
The Patent Act 1970 says that only the true and first inventor, assignee of the true and first inventor and legal representative of the true and first inventor can claim the patent.
Procedure for Registration of Patents
One cannot get a patent without having technical information about it. The procedure for registration of patent goes as follows.
- Before patent application is filed, the inventor or assignee or person authorized is advised to conduct a patentability search. This is because the novelty requirement means that any invention that has already been published is not patentable.
- Once the search is done, the patentee needs to file the patent application with the Indian Patent Office. This application should be accompanied by a provisional or complete specification. In case the invention is in its developmental stages, provisional specification is filed and the complete specification must be filed 12 months from the date of filing patent application. If such complete specification is not filed within the period, the application is considered abandoned.
- After application is filed, it will be published within an 18 month period. A request for early publication can be made on a separate Form.
- After publication any person can file a pre-grant opposition under Section 11A of the Act on grounds under Section 25 (1) of the Act. This pre-grant opposition must be filed within 6 months from the publication of the patent or before the grant of patent.
- Request for examination must be made within 48 months from the priority date.
- If the examiner has an objection it will be published in the first examination report. Such objections must be satisfied within 12 months. If the examiner is not satisfied, then application is cannot proceed.
- After all objections have been satisfied then the patent gets granted.
- After the grant of patent a post grant opposition may be filed under Section 25(2) of the Act. This opposition can be filed any time during 12 months after grant of patent.
The procedure can be done only by an authorized patent attorney.
Types of Patent You Can File
An Applicant may file one of three types of patent applications:
- Ordinary Application: A single patent application is filed in the Indian Patent Office. This application does not claim any priority from earlier applications. The filing date and priority dates are same in case of ordinary application. An ordinary application can be accompanied with a complete specification and claims or a provisional application followed by a complete application a maximum of 1 year later.
- Convention Application: In this a basic patent application is filed in the convention country (country which is member of the Paris Convention) and within 12 months a similar application is filed in India. The first patent application is always foreign country and not India.
- Patent Cooperation Treaty Application: A single international patent application can be filed to secure patent in number of member countries. The priority date will be the same as the date of filing of the international patent application.
When any person uses the product or the process without permission of the owner then it amounts to infringement. The person infringing the patent is called the infringer. Infringement can be direct or contributory infringement.
When the invention performs substantially the same function it is direct infringement.
When there is sale of components of material made for the patented invention and have no other commercial use it is called contributory infringement.
Monetary Relief: Monetary relief in the form of compensatory damages acts as a deterrent to prevent patent infringement:
- Indemnity compensation – A patent owner may have lost profits for infringement when they established the value of the patent.
- Increased damage – Up to three times, compensation charges can be charged in cases of particular loss to the patentee.
- The time period for damages – The right to damages can be claimed only after the date when the patent was issued and only 6 years before the infringement claim is filed.
Equitable relief: Orders are issued by the court to prevent a person from doing anything or Act. Injections are available in two forms:
- Preliminary injunction – Orders made in the initial stage of lawsuits or lawsuits that prevent parties from doing an act that is in dispute (such as making a patented product).
- Permanent injunction – A final order of a court which permanently ceases certain activities or takes various other actions.
The Rights of Patentees
- Patentee has the exclusive right to exploit his patent in respect of his product or process. He has the right to prevent others from using it without permission.
- Patentee has the discretion whether he wishes to license the invention. Right to license or assign is for the patent owner to decide. Assignment must be in writing and documented. It cannot be treated as evidence of title unless registered and this is applicable to assignee not to the assignor.
- Patent owner may surrender the patent. This will be after giving prior notice to any person having interest or whose name is in the register.
- The patentee has the right to sue for infringement.
The Obligations of Patentees
- The patent can be for government use exclusively. It is to be understood that the Government may also restrict or prohibit the usage of the patent under specific circumstances. In case of a patent in respect of any medicine or drug, it may be imported by the Government for its own use or for distribution in any dispensary, hospital or other medical institution run by or on behalf of the Government. The aforesaid use can be made without the consent of the patentee or payment of any royalties. Apart from this, the Government may also sell the article manufactured by patented process on royalties or may also require a patent on paying suitable compensation.
- When reasonable rights of public in relation to the invention are not satisfied. The patented invention is not available at reasonable price and when it is not workable in the territory of India then compulsory license of patent is granted.
- Invention for defence purposes: Such patents may be subject to certain secrecy provisions, i.e. publication of the Invention may be restricted or prohibited by directions of Controller.
- Patents when are no longer working they may be revoked.
- Patents for non-renewal of payment be lapse and such patents again maybe restored after imposing certain limitations on the patentee.
Author: Dipanwita Chakraborty, Legal Intern at PA Legal.
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