In the innovation economy, invention determines the future of the nation.
The development in the field of science and technology plays a vital role in
today's economic world. More inventions bring more economic development to
the country. Patent rights not only grant rights to an inventor but also the
inventor gets a share of 50% from licensing the patent. India should
encourage the inventor to make more inventions and to achieve the developed
position in the world's economy.
In the context, we have to discuss one of the prominent rights of
intellectual property. In today's condition, intellectual resources play an
important role in the development of both personal and country in general.
The major task of the government in any country is to find new resources for
its economic growth. The invention is essential but protection of that
invention is the predominant one.
To protect that invention “patent rights”
was introduced under patent act 1970 along with the patent rules 1972. The
word 'patent' derives from Latin word 'patere' which means 'to open'. Patent
is a legal right exclusively granted to the inventor to protect and prevent
the invention from misusing it. Every person has the right to get a patent
for its invention. Patent is given to that invention which is an unknown
product, new process of making or new way of using.
The invention which
fulfills all the conditions under section 47 of patent act should be
recognized as patentable invention. Patent is valid for only 20 years. After
completion of 20 years, the patent expired and it was placed for public use.
If anyone uses the invention, first they get a license from the inventor,
otherwise who uses that invention without getting a license is punishable.
In this case inventors have the right to sue and get compensation, in this
innovative world, achievement in the field of science and technology becomes
a decisive factor of economic growth. Those intellectual resources are
protected by the intellectual property rights.
Patent and patent law
Patent is a legal document granted by the national government to protect an
invention and give the exclusive right to the inventor to make, sell, lease,
and give license to an invention. Parent is granted only for the unique
thing i.e. inventive steps must be included with the invention. Those
inventions are granted under section 2(1) (m) of the India patent act 1970.
Patent act 1970 replaced the patent law and the patent and designs act. It
was amended in 2005.
Every single person can get a patent for his or her
invention. Even two or more people jointly inverts a thing they are also
capable of getting a patent for. Patent is a mandatory one. If one
manufactures a thing, without getting a patent, no security is given to
their manufacturing product from being copied or reproduced.
inventor couldn't bring an action against the infringement. The aim of the
patent system is to encourage the inventor for his technology by awarding
him special rights to get benefits (profits) from their invention. Patent is
valid for 20 years, and after that it is placed in the public domain. To
keep the patent in force, renewal fees are paid for every year until the
completion of 20 years.
What is patentable?
Patent isn't easily approved by the patent office. To qualify for a patent,
the invention must fulfill the three basis requirements.
- Novelty (quality of being new and original) means no one in the
world is so far aware of the invention.
- Utility (being useful to mankind or profitable) means invention is
capable of industrial application.
- Inventive step (should not be obvious) means significant improvement
to the statue, use or process of existing technology. An invention which
fulfills the conditions above mentioned is recognized as a patentable
invention under section 47 of the patent act.
Patent for inventions not for discoveries:
Some inventions which can't be patentable even if they pass three
requirements are called non patentable inventions. Patentability differs
from country to country. Under Indian patent act all the invention which
comes under the section 3 and 4 cannot be patentable in India. Inventions
which are frivolous, obvious, contrary to law, morality, contrary to well
established natural law, injurious to public health, method of agriculture
and horticulture, invention relating to atomic energy, duplication of known
devices, discovery of scientific principles etc are not patentable in India.
Patent is only a granted for invention, not for discoveries. Anyone
discovering a new thing occurring in nature is usually called a discovery
not an invention.
Purpose of getting patent:
The ultimate aim of getting a patent is to enjoy exclusively right over the
invention. Patent is essential for commercial purpose and without getting a
patent, the invention didn't have security, recognition and being cheated by
others who copied the invention. After the invention has been made, the
inventor decides whether to get a patent or not. Mostly go with the decision
that not to file a patent application and the invention is protected by the
way of confidentiality. It is not suitable for the commercial purpose of the
invention. Patents are tradable forms of protection.
License of patent:
It means the owner grants permission to a third party or company to make use
of his or her invention. This agreement is based on certain terms and
conditions such as defined purpose, territory and period for the use of an
invention. Licensors may grant a license to a licensee for many reasons. To
license a patent, the patent holder receives the “royalty” payments in
Patent filing process:
The initial stage of getting a patent is to documentation of the invention.
The important criteria are to determine the novelty. Then the document is
filed at the Indian patent office (IPO) along with prescribed forms. If an
inventor wants to apply for a patent in a foreign country, first he should
get foreign filing permission from the IPO. In case failure to seek foreign
filing permission, it results in criminal liability and imprisonment for 2
years and a fine or both.
After 18 months from the date of application, the
application is published on the official website. Anyone who opposes the
application is called 'pre-grant opposition'. After publication, examination
of application takes place within 48 months from the date of priority. The
controller can decide whether to grant a patent or not. In case no issue
with the above mentioned process controller can grant the patent. The
opposition rose within the one year of grant of patent it is called
Maintainability of secrecy by IPO:
IPO should maintain the secrecy of all patent applications for 18 months
from the date of application. After the completion of all the process such
as publication, examination, pre-grant opposition, post-grant opposition. If
the applicant has a doubt regarding the secrecy maintainability of the
controller, he or she can sue the controller.
Process of renewal of patent:
Renewal fees are payable to keep a patent in force. For every year expect
the first two year of grant of patent. Patent may lapse when the patent
holder fails to pay the renewal fee. At that time patent holders couldn't
manufacture and sell. But renew it by paying all the prescribed fees,
otherwise the patent is cancelled. According to section 53, the validity of
the patent is for 20 years. Renewal fee is payable until the completion of
Rights of patentee:
Patent is the monopoly right given to the inventor under section 48 of the
indian patent act.
The patent holder has a power of authority over his or her invention:
- Only an inventor has the right to sell, mortgage or give a license
to his invention.
- The inventor has the right to sue against infringement.
- The inventor has the right to surrender his invention for the public
domain before the completion of 20 years.
Most stunning example of the rights of patentee was Dr. Jonassalk who
invented the polio vaccine, and he denied his patent rights. He placed the
polio vaccine for the public domain, and he lost 7 crore dollars at that
time. If he gets a patent for his vaccine, he becomes a billionaire. But he
couldn't do it, and so that thousands of poor children are cured by the
polio vaccine. Definitely we must praise him for his generosity.
Patent infringement and remedies:
Patent infringement means unauthorized use of a patented invention by a
third party, or, in other words, the usage of a patented invention without
getting a license from the patent holder. Section 104 to 144 of the Indian
patent act 1970 provides guidelines for the infringement of patent. The
limitation period to file a suit for patent infringement for 3 years from
the date of infringement stated under Indian limitation act. The patent
holder can file a suit in district court or high court.
assignee, co-owner have the right to bring a suit against patent
infringement. Direct infringement and indirect infringement are the two
types of patent infringement. In a patent infringement case, counterclaim is
filed by the defendant. Both the main suit and counter claim are heard at
the same time. If the patentee establishes the prima facie case, irreparable
injury and balance of convenience, in that case, the court issues an
injunction order and give suitable relief under section 106 of the Indian
In early days, India was struggling to protect the rights of patent holders.
To safeguard the patentee Anton Piller Order
and Mareva Injunction
are implemented in intellectual property cases. Anton piller
order is issued by the court in cases where the defendant may destroy the
It allows the plaintiff the right to search the suspect premises
of the defendant and seizure of evidence without prior notice stated under
ordinance 39 of the civil procedure code, 1908. Maria injunction can be
granted to freeze the assets to the defendant, and the document is properly
submitted to the court under order 39 rules 1 of civil procedure code.
Auto Ltd VS TVS Motor Co Ltd
, the plaintiff first got patent rights.
After that, the defendant introduced the same product with a small change in
name. Defendant manufactures a product and sells it. Plaintiff files a suit
against the defendant. The madras high court held that it had different
technology, but it ordered the defendant not to manufacture and sell it
until the ending of the court proceedings. Then the plaintiff appealed the
case, and the Supreme Court also passed the same order. Here “anton piller
order” is given to the plaintiff to search the defendant premises.
Is that defense equipment is patentable:
The inventor who inverts the equipment related to defense may not receive a
patent. If the invention is used by the central government, the rights
vested in the inventor's name, and the government could give a suitable
Advantages and disadvantages of patent:
- The Inventor is the sole authority to do anything regarding his or
her invention. Patent holder has a complete monopoly and raises the
capital for business.
- To get a patent is a long process; typically it takes (3 to 4
years). Not all the patents have financial value.
Patent is essential to protect the rights of the inventor. In order to
protect the rights of the intellectual property holder, various types of
rights are given and to solve the intellectual property disputes,
alternative dispute resolution (ADR) is also established. Patent protects
the invention and boosting the inventor to invert many things.
developed countries use the intellectual resource as an important tool to
develop their country's economy. By the way, India tends to increase
inventions, and it gives a way to become developed nation.
- Bajaj Auto Limited Vs Motor Company Limited JT, 2009 (12) SC 103
- M. Vanmathi,
II year of B.A.,LL.B. -
The Central Law College
Ph no: 6383081986,
Email: [email protected]
- B. Sandeep Harish,
II year of B.A.,LL.B. -
The Central Law College
Ph no: 8110067837,
Email: [email protected]
Authentication No: AG021692353987-3-720