April 16, 2021

Patent Registration in India: Process, Term and Rights of Patentee

Patent

Introduction

Intellectual Property is the creative work of the human intellect and the right to intellectual property is an invisible/intangible right to a product of a human mind such as a new investigation of a product. I.e property An intellectual property of the human brain. Intellectual property is at times described as ‘knowledgeable goods’

The main motivation for its protection is to promote the progress of science and technology, arts, literature, and other forms of creative work to encourage and reward creativity. It is an established principle in most modern states to give statutory protection to the economic rights of the creator in their creations and the right of the public in accessing those creations. This is instrumental in promoting creativity and dissemination and the application of economic and technological development of a nation will come to a halt if there were no protection in sine qua non for the industrial and economic development of a nation. The prosperity achieved by the developed nations is to a good extent has been a result of the exploitation of their intellectual property.

Intellectual property relates to pieces of information that can be incorporated into intangible objects at the same time in an unlimited number of copies at different locations anywhere in the world. This property does not hold it’s value in its multiple copies but the information reflected in the said copies. According to article 2 (viii) of the convention establishing the present World intellectual Property Organization[1] (WIPO) 1967. Intellectual property includes rights relating to:

  • Literary, Artistic, and Scientific Work
  • Performance of performing artists, phonograms, and broadcasts
  • Inventions in all fields in human endeavors
  • Scientific discoveries
  • Industrial designs
  • Trademarks, service marks, commercial names, and designations.
  • Protection from unfair competition

The intellectual Property thus, includes copyrights, trademarks, service marks, geographical indications, patents, utility models, plant varieties, industrial design, trade secret, layout design of IC, etc. Intellectual Property usually is divided into two branches (1) Copyright and (2) Industrial property.

Intellectual Property has assumed central importance throughout the world in recent times. The Intellectual Property, which has mainly the subject matter of the World Intellectual property Organization (WIPO), has also become a part of the World Trade Organisation[2] (WTO) regime in 1995. The agreement on trade-related aspects of intellectual property rights including trade in counterfeit goods of the WTO treaty evolved minimum standards for the protection of Intellectual property for the member states to incorporate in their municipal laws. 

The Patents Act[3] act lays down the procedure for the grant of a patent to an inventor to exploit their invention for 20 years subject to the fulfillment of certain conditions. The first step is to make an application in the prescribed form along with the professional or complete specification. The application thereafter is published, and examined (if requested), and a search for anticipation is made. positions are invited from the public to the grant of patent and where there is no opposition the opposition is decided in favor of the inventor, the patent is granted and sealed which confers certain rights on the patentee.

Who can Apply for a Patent?

To be eligible to apply for a patent for an invention that has been made by any persons alone or jointly with any other person with the following prerequisites:

  1. Any person claiming to be the true and the first inventor of the invention.
  2. Any person being the assignee of the person claiming to be the true first investor in respect of the right to make such an application.
  3. The illegal representative of any deceased person who immediately before his death was entitled to make such an application.

The term ‘person’ as defined in the Patent Act includes the Govt. The term “person” as defined in the General Clauses Act, 1897[4] includes any company or association or bodies of individuals, whether incorporated or not.

True And First Inventor

“True and first inventor” means a person who has made an invention. Where to person have made the same invention independently and not disclose it, then the inventor who applied for a patent is to be taken as the first and true inventor of the invention, irrespective of the fact that he had made the invention later than the other inventor[5]. According to section 2(1) (Y) of the Patents Act 1970, “true and first inventor” does not include either the first importer of an invention into India, or a person to whom and invention is first communicated from outside India.

In Norris Patent[6], a person who contributed one of the two main ideas in an invention was a Co inventor.In V.B. Mohammed Ibrahim v. AlfredSchafranek[7],what was considering the issue of the plaintiff, who was a financing pata could be deemed to be one of the inventors, or whether the firm could be treated as an inventor so that the name of the firm itself could be registered directly as a patent a full stop the court observed that it was not the plaintiff’s case that he contributed any part of his ingenuity or scalar or technical knowledge towards the invention in question. He gave the finances for running of the concern and that in this help experiments were made and ultimately the invention was evolved. It was not disputed that the person that actually labour and found out the process for defendants 1 and 2. Under the circumstances it was very difficult to accept that the plaintiff could be treated as an inventor. It was obvious that the person who was responsible for the invention must be defendants 1 and 2 and not a plaintiff.

 

Application Form

According to section 7 of the Patents Act 1970, every application for a patent shall be for singular investigation. The application is to be filed in the Patent Office.

Under the Patents act of 1970, the patent office could be established at various places. An application for a patent is to be made in the form prescribed and filed in the appropriate patent office. Territorial Jurisdiction of the Patent Office is decided based on the following:

  1. Place of Residence, Domicile or business of the application (mentioned first in the application in the case of joint application)
  2. Place form where the invention originated.
  3. Address for the service in India given by the applicant, when the application has no place of business or domicile in India (foreign applicants)

International Application under the Patent Cooperation Treaty[8]

every international application for a patent under the patent cooperation treaty as may be filed designating India is to be deemed to be an application under this act if a corresponding application has also been filed before the controller general of patents, design, and trademarks in India. The filing date of such application and its complete specification processed by the patent office as a designated office or elected office Shelby the international filing date accorded under the PCT.

an application in respect of an international application designating India shall before the aforesaid period of time prescribed National fee and other fees to the patent office. and where an international application was either not filed or has not been published in English file with the patent office, a translation of the application in English comedy duly verified by the applicant or the person duly authorized by them that the contest thereof is correct and complete.

The translation of the international application shall include the translation in English of :

  1. Description;
  2. The claims filed;
  3. Any text matter of the drawings
  4. The abstract; and
  5. In case the applicant has elected India and any amendments to the description, the claims and text matter of the drawings that are NXT international premier league examination report.
  6. in case the applicant has elected India and any amendments to the description, the claims and text matter of the drawings that are annexed to the international preliminary examination report.

An application is made by virtue of an assignment of the right to apply for a patent for the invention a proof of the right to make the application is to be furnished either along with the application or thereafter in the prescribed time.in case the application has not elected India and if the claims have been amended under article 19 in the amended claims together with any statement filed under the set article;

Rights of Patentee under Patents Act 1970

The right of the patentee is a negative right which is enforceable at the instance of the placeholder.

A patent is to confer upon the patentee the following rights:

  1. Where the subject matter of the patent is the product, the exclusive right to prevent third parties, who do not have their consent, from the act of making, using, offering for sale, selling, or importing for those purposes that product in India.

  2. Where the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have their consent, from using that process, and from the act of using offering for sale, selling or importing for the purposes, the product obtained directly by that process in India.

In Telefonaktiebolaget LM Ericsson (publ) v. Intex Technologies (India) Limited[9] the court stated that the statutory and monopoly rights cannot be reduced to a nullity till the term of validity of the suit patents. The aforesaid rights are available subject to the other provisions contained in the act and the conditions specified in section 47. While the Patents Act no doubt offers a patentee the exclusive right to enjoy the fruits of his labor registered invention, the same cannot be employed as a tool for exploitations to cripple business rivals without adducting any proof of their alleged infringement.

Use of Patent Temporarily or Accidently on Foreign Vessel

adding two sections 49 of the Patents Act 1970, where are foreign vessel or aircraft for sale and vehicle owned by a person ordinarily resident in a foreign country comes to India including its territorial waters temporary or accidentally only the patent rights shall not be deemed to be influenced by the use of the invention –

  1. the body of the vessel or in the machinery, tackle apparatus or other accessories pair of, so far as the invention is used onboard The vessel and for its action needs only; or
  2. construction or working of aircraft or land vehicle or the accessories thereof, as the case may be

The provisions of section 49 are subject to the conditions of reciprocity.

Rights of Co-owners of Patents

According to section 50 of the Patents Act 1970, where a patent is granted to two or more people each one of them shall be entitled to an equal undivided share in the patent unless an agreement to the contrary is in force.

whether two or more person are registered as a guarantee of the proprietor of a patent than in absence of an agreement to the contrary, each one of such person shall be entitled to the right of the patentee for his benefit without accounting to the other person or persons whether two or more persons are registered as guarantee or proprietor of a patent than a licensed under the patent shall not be granted under share in the patent is not to be assigned by one of such person except with the consent of the other person.

whether a patented article is sold by one or two or more persons registered as a guarantee or proprietor of a patent, the purchase and any person claiming to him shall be entitled to deal with the article in the same manner as if the article had been sold by a sole patentee.

Law of Ownership and Devolution to apply

the law applicable to the ownership and evaluation of movable property generally shall apply concerning patents. The mutual rights or obligations of the trustee or the legal representatives of a deceased person or their rights or application as such are not to be affected by anything contained in section 50.

 

Power on the controller to give directions to co-owners

According to section 51, where two or more person are registered as guarantee or proprietor of a patent than an application of any such person of the controller make gives a direction following the application as to the sale or lease of the patent or any interest therein, the grant of licenses under The patent, or the exercises of any right under section 50 in relation thereto to as they think fit.

a person registered as guarantee or proprietor of a patent failed to execute any instrument or to do any other thing required for the carrying out any direction within 14 days after being requested in writing by any of the other person so registered, the controller may, on an application by any such person give direction empowering any such person to execute that instrument or to do that thing in the name and on behalf of the person in default. Before giving any direction in pursuance of an application, the controller is to allow being heard to the person in default.

Term Of Patent under Patents Act 1970

According to section 53 of the term of every patent granted after the commencement of the patent amendment act 2002 and the term of every patent which has not expired and has not ceased to affect the date of such commencement shall be 20 years from the date of filing of the application for the patent.

Term of a patent in case of an international application

the term of patent in case of an international application filed under pct designated India shall be 20 years from the international filing date according to under the pct.

Cessation of a patent on account of non-payment of the renewal fee

patent ceases on the expiration of the prescribed period if the renewal fee is not paid within the prescribed period or prescribed extended period.

On cessation of the patent right due to non-payment of renewal on expiry of the term of the patent, the subject matter covered by the set patent shall not be entitled to any protection. The patent does thus fall into the public domain and becomes public property.

 



[1] World intellectual Property Organization

[2]World Trade Organisation

[3] Patents Act 1970

[4] General Clauses Act, 1897

[5] Canadian General Electric v. Fada Radio, AIR 1930 PC 1 at p.5; Case Mine

[6] Norris Patent re, (1988) RPC 159

[7] VB Mohammed Ibrahim v. AlfredSchafranek AIR 1960 Mys 173

[8] Patent Cooperation Treaty

[9] Telefonaktiebolaget LM Ericsson (publ) v. Intex Technologies (India) Limited


Authored by: Dhananjay Bhattacharya [Alumnus of VES college of Law (2014-2019)]

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