What is Patent?
Meaning of Patent: – A Patent is an exclusive right granted to an invention by the Government, a product or a process that in general provides a new way of doing something, or a new technical solution to a problem. A patent is also available for improvement in their previous Invention. The main objective to enact patent law is to encourage inventors to contribute more in their field by awarding them exclusive rights for their inventions.
The word “Patent” is referred from a Latin term “patere” which means “to lay open,” i.e. to make available for public inspection. To obtain a patent, technical information about the invention must be disclosed to the public in the patent application.
A special right given by the government to the inventor to exclude others to make and sell an invention is a specific term. A patent is also available for an improvement on his previous invention. The main objective of enforcing patent law is to encourage inventors to contribute more in their field by granting exclusive rights to their inventions.
There are three basic tests for any invention to be patentable: –
- First, the invention must be novel, which means that the invention must not exist.
- Secondly, the invention must not be obvious, that is, the invention must be a significant improvement to the previous one; Mere change in technology will not give the inventor the right to patent.
- Third, the invention must be useful in a genuine way, which means that the invention must not be used solely in any illegal work and is useful to the world in a genuine way.
An invention considered as new if, on the date of filing the application, any such invention is not known to the public in any form, i.e. oral, writing, or any other form. Anything shall not be termed as inventive if such a thing is already known to the public domain. The patent has a limited term of 20 years, which is counted from the date of filing of the patent application. A patent is a territorial right. Thus it can only be applied in the country where it has been granted. Therefore, any legal action against infringement or infringement of patent rights can only be taken in that country. To obtain patent protection in different countries, each country must apply for a patent.
What is Patent Law?
Meaning of Patent law: – Patent law is the branch of intellectual property law that deals with new inventions. Traditional patents protect tangible scientific inventions, such as circuit boards, car engines, heating coils, or zippers. However, over time patents have been used to protect a broader variety of inventions, such as coding algorithms, business practices, or genetically modified organisms.
Once granted, a patent gives the inventors the exclusive right to sell their invention for 20 years. Sometimes inventors give other companies a license to manufacture and sell the invention in exchange for a fee.
The Patent Cooperation Treaty (PCT) provides a way to file an international patent application in which a patent can be filed through a single patent application in a large number of countries. However, the PCT of a patent remains discretionary of the individual patent office only after the application is filed.
History of Patent Law
The Patents Act 1970, along with the Patents Rules 1972, came into force on 20 April 1972, replacing the Indian Patents and Designs Act, 1911. The Patent Law was largely based on the recommendations of the Ayyangar Committee report headed by Justice N. Rajagopala Ayyangar, One of the recommendations was to allow process patents only in respect of inventions relating to drugs, drugs, food and chemicals.
Later, India became a signatory to several international arrangements aimed at strengthening its patent law and coming into league with the modern world. An important step towards achieving this objective was to become a member of the Trade Related Intellectual Property Rights (TRIPS) system.
Significantly, India also became a signatory to the Paris Convention and the Patent Cooperation Treaty on 7 December, 1998 and after that on 17th December, 2001 it signed the Budapest Treaty.
Being a signatory to TRIPS, India was under a contractual obligation to amend its Patent Act to comply with its provisions. India had to meet the first set of requirements on January 1, 1995, to grant pipeline protection until the country began granting product patents.
1. On March 26, 1999, the Patents (Amendment) Act, 1999 came into force with retrospective effect from January 1, 1995.
The main amendments are as follows: –
- Section 5(2) was introduced, which provides for filing of applications for patents in the field of drugs, medicines and agro-chemicals. These applications were kept pending in mailboxes or black boxes. This mailbox was to be opened on 1 January 2005;
- The provision of Exclusive Marketing Rights (EMR) was brought in through Chapter IV A. Thus, pipeline protection was provided for pharmaceutical and agro-chemical manufacturers whose applications for the product lay in black boxes;
- Section 39 was omitted from the Act, enabling Indian residents to simultaneously file applications for outside India;
- Chapter II (a) was inserted in the Indian Patent Rules relating to International Applications under the PCT.
2. The second phase of amendment was brought in by the Patents (Amendment) Act, 2002 which came into force on 20 May 2003.
Key features of the modifications include: –
- The term of the patent was extended from 14 to 20 years, with the date of the patent being the date of filing of the full specification. Also, the difference between the duration of a drug/food patent and that of other patents has been done away with;
- The definition of “invention” was made in conformity with the provisions of the TRIPS Agreement by introducing the concept of inventive step, thereby expanding the scope of the invention;
- Postponed examination system was introduced;
- Introduction of a provision for publication of the application after 18 months from the date of filing so as to bring India at par with the rest of the world;
- Microbes became patentable, while inventions related to traditional knowledge were included in the list of “what are not inventions”;
- Concept of unity of invention according to EPC and PCT;
- Section 39 was reintroduced, barring Indian residents from applying abroad without prior permission or for first filing in India;
- The provisions of the Appellate Board were brought by inserting section 116. All appeals for the decision of the Controller shall be appealable before the Appellate Board. The headquarter of the Appellate Board is to be at Chennai;
- Section 117 provides for Bollar provision for the benefit of the agro-chemical and pharmaceutical industry.
3. The third and final amendment to the Patents Act, 1970 came through the Patents (Amendment) Ordinance, 2004, which was later replaced by the Patents (Amendment) Act, 2005 and the Patents (Amendment) Rules, 2006 Patents (Amendment) Rules, 2006 with retrospective effect from 1st January, 2005. With the Third Amendment, India has fulfilled its international obligations under TRIPS.
The important achievements of this amendment were:
- Removal of section 5, opening mailbox and grant of product patent. Thus, this amendment introduced the “Product Patent Regime” in India;
- Abolition of Exclusive Marketing Rights (EMR).
The present Indian position with respect to patent law is governed by the provisions of the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 (hereinafter referred to as the Act) and the Patents Act Rules, 2006 (hereinafter referred to as the Act).
The main patent office is located in Kolkata and its branch offices are located in Delhi, Mumbai and Chennai. The patent system in India is administered by the Controller General of Patents, Designs, Trademarks and Geographical Indications. Each office has its own territorial jurisdiction to receive patent applications and is empowered to deal with all sections of the Patent Act.
The jurisdiction to file a patent application depends on: –
- Indian Applicant(s): – The place of residence, as determined by the applicant’s place of business or where the invention has actually originated.
- Foreign Applicant(s): – Determined by address for service in India.
What can be Patented under Patent Law?
Sections 3 and Section 4 of the Indian Patents Act, 1970 clearly mentioned the exclusions regarding what can be patented in India. There are certain criteria which have to be fulfilled to obtain a patent in India. They are: –
- Patent Subject: –The most important consideration is to determine whether the Invention relates to a patent subject matter. Sections 3 and 4 of the Patent Act list a non-patentable subject. Unless the invention is covered under any provision of section 3 or 4, it means that it involves a subject to a patent.
- Novelty: – Innovation is an important criterion in determining the patentability of an invention. Under section 2(l) of the Patents Act, a novelty or new invention is defined as “any invention or technology published in any document before the date of filing of the patent application, anywhere in the country or the world”. The complete specification, i.e., the subject matter does not fall into the public domain or is not part of the state of the art”. Simply, the novelty requirement basically states that an invention should never have been published in the public domain. It must be the newest that does not contain the same or similar prior art.
- Inventive Steps or Non-Clarity: – Under Section 2(1)(j) in The Patents Act, 1970, an inventive step is defined as “an invention characterized by technological advancement or of economic importance compared to existing knowledge, or both, and and invention not obvious to a person skilled in the art.” This means that the invention should not be obvious to a person skilled in the same field where the invention is concerned. It doesn’t have to be inventive and obvious to a person skilled in the same field.
- Capable of Industrial Application: – Industrial applicability is defined in Section 2(1)(ac) in The Patents Act, 1970 as “an invention capable of being made or used in any industry”. It basically means that the invention cannot exist in essence. It must be able to be applied in any industry, which means it must have practical utility with respect to patents. These are the statutory criteria for patenting an invention. In addition, the other important criterion for obtaining a patent is the disclosure of a competent patent. A competent patent disclosure means that a patent draft specification must sufficiently disclose the invention, so as to enable a person skilled in the same field concerned to carry out the invention with undue effort.
Rights and Obligations of the Patentee in Patent Law
Rights of Patentee
The Rights of Patentee are given as follows: –
- Right to Exercise Patent: – A patentee has an exclusive right to use, sell or distribute a patented article or substance in India or to use or exercise any law or process if the patent is for any person. This right may be exercised either by the patentee himself or by his agents or licensors. The rights of the patent holder can be exercised only during the term of the patent.
- Right to Grant License: – The patent holder has the discretion to transfer the right or license or enter into any other arrangement for consideration. A license or assignment must be in writing and registered with the Patent Controller, so that it is valid. The document granting a patent is not accepted as evidence of a person’s title to the patent unless it is registered and applies to the assignee and not the assignor.
- Right to Surrender: – A patentee has the right to surrender his patent, but before accepting the offer of surrender, a notice of surrender is given to persons whose name is entered in the register as having an interest in the patent and their objections, if any, considered. The application for surrender is also published in the Official Gazette to enable interested persons to oppose.
- Right to Sue for Infringement: – The District Court having jurisdiction to sue for infringement of patent has the power to initiate proceedings for infringement of patent.
Obligations of Patentee
The Obligations of Patentee are given as follows: –
- Government Use of Patents: – A patented invention may be used or even acquired by the Government, for its use only; 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.
- Compulsory License: – If the patent does not work satisfactorily at a reasonable price to meet the reasonable needs of the public, the Controller may grant a compulsory license to any applicant to operate on the patent. A compulsory license is a provision under the Indian Patent Act that empowers the government to mandate a generic drug manufacturer to make a drug cheaper in the public interest, even if the product has a valid patent. Compulsory licenses can also be obtained in respect of related patents where a patent cannot be worked out without the use of the relevant patent.
- Revocation of Patent: – A patent can be revoked in cases where there is no work or an unsatisfactory result for public demand in respect of the patented invention.
- 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. Upon continuance of such order or prohibition of publication or communication of patented Invention, the application is debarred for using it, and the Central Government might use it on payment of royalties to the applicant.
- Restored Patent: – Once lapsed, a patent may be reinstated, provided certain limitations are imposed on the right of the patentee. When the infringement was committed between the period of the date of infringement and the date of advertisement of the application for reinstatement, the patent has no right to take action for the infringement.
What are the authorities concerning patent law?
The Controller of Patents is considered as the principal officer responsible for administering the patent system in India. The Controller is regarded as the overall supervisor of the four Patent Offices in Chennai, Delhi, Mumbai and Kolkata. Since the Controller also acts as the Registrar of Trademarks with the Head Office of the Trade Office in Mumbai, the Controller acts as a patent from his office in Mumbai. Officially, the patent has its head office in Kolkata (Calcutta). Patents granted under the Patents Act and other officers of the Patent Office discharge their functions under the direction or regulation of the Controller.
What is Patent Infringement?
Meaning of Patent Infringement: – Patent infringement is a violation which involves the unauthorized use, production, sale, or offer of sale of the subject matter or Invention of another’s patent. There are many different types of patents, such as utility patents, design patents, and plant patents. The basic idea behind patent infringement is that unauthorized parties are not allowed to use patents without the owner’s permission.
When there is infringement of patent, the court generally compares the subject matter covered under the patent with the used subject matter by the “infringer”, infringement occurs when the infringer uses patent material from in the exact form. Patent infringement is an act of any unauthorized manufacture, sale, or use of a patented invention. Patent infringement occurs directly or indirectly.
- Direct Patent Infringement: – The most common form of infringement is direct infringement, where the Invention that infringes patent claims is actually described, or the Invention performs substantially the same function.
- Indirect Patent Infringement: – Another form of patent infringement is indirect infringement, which is divided into two types: –
- Infringement by inducement is any activity by any third party that causes another person to infringe the patent directly. This may include selling parts that can only be used realistically for a patented invention, selling an invention with instructions to use in a certain method that infringes on a method patent or licenses an invention that is covered by the patent of another. The inducer must assist intentional infringement, but does not require intent to infringe on the patent.
- Contributory infringement is the sale of components of material that are made for use in a patented invention and have no other commercial use. There is a significant overlap with indications, but contributor violations require a high level of delay. Violations of the seller must have direct infringement intent. To be an obligation for indirect violations, a direct violation must also be an indirect act.
Remedies for Patent Infringement
Patent infringement lawsuits can result in significantly higher losses than other types of lawsuits. Some laws, such as the Patent Act, allow plaintiffs to recover damages. Patent infringement is the illegal manufacture or usage of an invention or improvement of someone else’s invention or subject matter who owns a patent issued by the Government, without taking the owner’s consent either by consent, license or waiver. Several remedies are available to patent owners in the event of an infringement. Measures available in patent infringement litigation may include monetary relief, equal relief and costs, and attorneys’ fees.
- Monetary Relief: – Monetary relief in the form of compensatory damages is available 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 will or violation of will.
- 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 patent product)
- Permanent Injunction: – A final order of a court which permanently ceases certain activities or takes various other actions.