A Patent is a monopoly right granted by the Act to the person who has invented the new and useful invention or the newness of an already existing article or any new process to the making of an old invention.
The modern period is the era of science and technology. Every person is working on new ideas and technology. So, it becomes important to reward the person, who innovates the new invention, by giving some monopoly rights over the invention. The patent act recognizes the right and duties of the patentee.
Table of Contents
What is a patent?
A patent is a specific right given to the person who has invented something new. He can enjoy the right of patent till the expiry of the term of his patent. The patent right to patentee helped to secure his invention and encourage him for more scientific research.
The patent comes under 7 Important Intellectual Property Rights in India.
Who is Patentee?
The person who invents the new article or improvement in existing articles or a new process for making any old article is known as Patentee.
History of Patent
The first patent was recognized in Ancient Greece in Sybaris. It was a grant in 1450 for the making of glass. The period for this was only 10 years.
Objects of Patent
The main objective is to encourage scientific research, new technology, and the progress of industrialization. It is given for a specific time and after the expiry of the period, the patent will pass into the public domain.
Significance of patent
Research and development (R&D) are the key factors for the growth of the County. Monopoly rights to patentee motivate him for more and more research in the field of technology development.
What can be patented?
The Patent act 1970 (Amended in 2005) defines inventions as “any new process or product which involves the inventive step and which is capable for industrial applications.
There are three main points which must be followed:
Novelty is the main subject of innovation. A novelty means any invention or technology which is not used before in the country or elsewhere, which is not anticipated by publication and should not fall in the public domain.
For instance, in a case, the USA patented the “turmeric” which was challenged on the ground that there is no novelty in the invention.
The merely obvious or modification of the prior articles that could be achieved without the lure of patent rights is not available for the Patent Rights. There must be some non-obviousness. Though it is difficult to determine whether the given modification is a mere mechanical advancement in that article or the result of the meritorious invention.
Also, it is observed that even after the grant of a patent, it is open for the opposing party of that patent to prove that there were no inventive steps in the invention and therefore, the Patent authority can grant an interim injunction.
An article or invention must be capable of “industrial application” to grant the Patent. Though, the use may not be for-profit because it can be used for agriculture also.
Product Patent and Process Patent
Before the Patent Amendment Act 2005, the process patent was granted for the categories of food, drugs, and pharmaceuticals. But after the TRIPs, the changes were made in the act and the Act was shifted to Product patent.
Every invention is not patentable. The law forbids some categories to grant the patents:
- An invention that is contrary to morality or public order.
- Frivolous invention.
- Discovery of living things.
- Re-arrangement of known substances.
- A method of agriculture.
- Any process of medical treatment.
- Plants and animals.
- A mathematical or computer program.
- A literary, musical or dramatic work.
- Presentation of information.
- Duplication of known properties of traditionally known components.
- A method of playing the game.
- Inventions relating to atomic energy.
Who can apply for a patent?
- The true or first inventor of the invention.
- The assignee, legal representatives of the true inventor.
Provisional and Complete Specification
These are the forms of the specifications that have to be submitted to the controller with the application. Where the application is submitted with the provisional specification to the controller, the complete specification must be submitted within 12 months. If the person is failed to file, the application will be deemed to be rejected.
What is the anticipation?
Anticipation means if any person knows about or used the invention which is going to be Patent, that person can apply for the cancellation of the application filed by the person who claims his invention. At the time of the First Examination Report (FER), the controller can also mention about the anticipation.
Types of patent
There are the following three types of patent:
- Utility patent
- Design patent
- Plant patent
A utility patent is one of the common types of patent. The utility patent is issued for any process, product, machine, the composition of matters, or any useful improvement in an old product or process.
The design patent is a letter to the appearance of an item. Any new and original design for any product can be patented.
A plant patent is a given for the new variety of plants that is created by a person due to any process.
Term of Patent in India
Before 2002, the term for the patent in India was 5 to 14 years according to the inventions. But after the 2005 amendment, the term was set up to “20 years”. 20 years shall be counted from the date of applying.
Rights and obligations of the patentee
Rights of patentee
After the grant of the patent, certain rights and obligations are given to patentees in India. The Patent Act gives certain rights to the patentee so that he can gain some profit from his patent.
The patentee can enjoy the following rights:
Section 48 of the patent act 1970 provides the exclusive right to patent. As we know that the patent can be a product or process. Section 48 provides exclusive rights by preventing the patent in both situations whether it’s a product or process.
- If the subject matter of the patent made by the patentee is a product, The exclusive right to patent prevents third parties from making, offering for sale, selling, importing, using the product made by the patentee without his consent.
- If the patentee has taken the patent for a process, the exclusive right to patentee prevents third parties from using that process for making any product, using, selling or importing without the consent of the patentee.
In simple words, the third party can only use a product or process patented by the patent only if the patentee gives his consent to third parties to manufacture, import and sell that product or process.
Right to exploit
This is one of the main rights of patentees in which the patentee has the right to possess, use, and dispose of the patent made by him.
Any agent authorised by the patentee can also enjoy this right on the behalf of the patentee. Under The patent Act, it is mentioned that the patentee can give the power of attorney to his agent for the use of a product or process patented by his master.
Right of assignment
It is the right of the patentee that he can assign and give the licence to a third party to use, manufacture, sell or export his product or process. But for the assignment of his right to a third party, the patentee has to inform the registrar of the patent. The licence given by the patentee to third parties will work like a written contract between them.
Right to enjoy the benefit
It is the right of the patentee that he can take benefit from his invention. In a case where he has assigned the third party for the manufacturing used and selling his invention, he can take the benefit from that assignment.
Right to Mark
The patent holder can affix his name or company name on the product invented by him. He has the right to sell his product by affixing his company name on the product.
Right against infringement
It is the right of a patentee that he can file litigation in the court of law if any person has increased his rights given under the patent Act by using his product or process.
Right to renounce patent rights
The patentee can renounce his patent rights by giving his written declaration to the controller of the patent. After the written declaration of the patentee, the controller will advertise his surrender.
After the advertisement, any other party interested in getting the ownership can approach the controller to take ownership of that patent. If the controller finds that the approach made by any other party is genuine, he will grant the ownership to that party.
Rights of co-owner of the patent
In a situation where there are two or more persons in the patent, each person will be known as patentee and every person shall have every right given under the act unless an agreement to the contrary is made between all the partners.
- If there is any agreement made between the patent holders, the share will be divided according to that agreement.
- If there is no agreement made between the patent holders, every patent holder can enjoy the rights given under the patent Act without infringing the right of another patent holder.
- If any patent holder sold his right to another person, that person will take the position of the patent holder as a partner.
- The agent of the patent holder can also enjoy the right of the patentee on the behalf of his master.
Obligation of patentee
The Patent Act also give some application to the patentee which should be fulfilled by the patentee
Duty to disclose
It is the duty of the patentee to disclose all the necessary facts needed by the controller. The duty to disclose all the necessary Facts starts from the initial state when a person files the application for a patent. It is the duty of the patentee that he should inform the controller regarding a similar invention filed by him or another person.
Request for examination
It is the duty of the patentee that he has to request the controller for the examination of a product or process invented by the patentee.
Duty to answer all the objections
Many times it happens that many other parties raise objections to the invention made by a patent holder. It is the duty of the patentee that he has to answer all the objections imposed on him.
Clear all the objections
It is the duty of the patentee that he should clear all the objections opposed to his invention. If he fails to clear all the objections, the patent controller may take his patent rights and give it to the party who is making the objection.
Patents need some fees during the registration process of the patent. If the patent holder failed to pay all the state rotary fees, we will not be liable to grant the patent.
FAQ related to patent laws in India
What is the object of the patent?
The main object of the patent is to encourage scientific research and new technology for the growth of the country.
What can be patented?
Any product or process which is new and non-obvious and can be used as an industrial application can be patented.
What is a patent right?
Aright given to a person who has invented a product or process is called patent right.
What are the rights of patentees in India?
One of the best rights to patentees in India is that the patentee has the right to manufacture, use, sell and export his product for the process without any restriction.
A patent is an exclusive right of a person to enjoy the benefits from the invention made by him. Any process or product can be patented by taking some points into consideration. The patent rights in India encourage the person to do more research in science so that our nation can grow more.