Unit iv

PATENTS meaning and nature

A patent is an exclusive right granted by the Government to the inventor to
exclude others to use, make and sell an invention is a specific period of time.
A patent is also available for improvement in their previous Invention. The
main motto to enact patent law is to encourage inventors to contribute more
in their field by awarding them exclusive rights for their inventions. In modern
terms, the patent is usually referred to as the right granted to an inventor for
his Invention of any new, useful, non-obvious process, machine, article of
manufacture, or composition of matter. The word “patent” is referred from a
Latin term “patere” which means “to lay open,” i.e. to make available for public
inspection. There are three basic tests for any invention to be patentable:

• Firstly, the invention must be novel, meaning thereby that the

Invention must not be in existence.
• Secondly, the Invention must be non- obvious, i.e. the Invention must
be a significant improvement to the previous one; mere change in
technology will not give the right of the patent to the inventor.
• Thirdly, the invention must be useful in a bonafide manner, meaning
thereby that the Invention must not be solely used in any illegal work
and is useful to the world in a bonafide manner.
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. 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.
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.

Under the Indian patent law, a patent can be obtained only for an invention
which is new and useful. The invention must relate to the machine, article or
substance produced by a manufacturer, or the process of manufacture of an
article. A patent may also be obtained for innovation of an article or of a
process of manufacture. In respect to medicine or drug and certain classes of
chemicals, no patent is granted for the substance itself even if it is new, but
the process of manufacturing and substance is patentable. The application for
a patent must be true and the first inventor or the person who has derived
title from him, the right to apply for a patent being assignable.
Some inventions cannot be patented. In the European Patent Convention (EPC)
law there is the list of non-patentable subject-matter which includes methods
of medical treatment or diagnosis, and new plant or animal varieties. Further
information on such fields can be obtained from a patent attorney. Nor many
patents be granted for inventions whose exploitation would be contrary to
public order or morality (obvious examples being land-mines or letter-
bombs).The following are not regarded as inventions, discoveries, innovations,
scientific theories and mathematical methods, aesthetic creations, such as art
or literature works or art of writing, schemes, rules and methods for
performing mental acts, playing games or doing business, presentations of
information, computer software.

Rights and obligations of the patentee

Rights of Patentee
Section 48 of the Act, talks about the rights granted to a patentee.

• Right to exploit patent: A patentee has the exclusive right to make

use, exercise, sell or distribute the patented article or substance in
India, or to use or exercise the method or process if the patent is for
a person. This right can be exercised either by the patentee himself
or by his agent or licensees. The patentee’s rights are exercisable only
during the term of the patent.
• Right to grant license: The patentee has the discretion to transfer
rights or grant licenses or enter into some other arrangement for a
consideration. A license or an assignment must be in writing and
registered with the Controller of Patents, for it to be legitimate and
valid. The document assigning a patent is not admitted as evidence
of title of any person to a patent unless registered and this is
applicable to assignee not to 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 patentee has a right to institute
proceedings for infringement of the patent in a District Court having
jurisdiction to try the suit.
Obligations of patentee
• 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 licenses: If the patent is not worked satisfactorily to meet
the reasonable requirements of the public, at a reasonable price, the
Controller may grant compulsory licenses to any applicant to work the
patent. A compulsory license is a provision under the Indian Patent
Act which grants power to the Government to mandate a generic drug
maker to manufacture inexpensive medicine in public interest even
as a patent in the product is valid. Compulsory licenses may also be
obtained in respect of related patents where one patent cannot be
worked without using the related patent.
• Revocation of patent: A patent may be revoked in cases where there
has been no work or unsatisfactory result to the demand of the public
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 Patents: Once lapsed, a patent may be restored, provided
that few limitations are imposed on the right of the patentee. When
the infringement was made between the period of the date of
infringement and the date of the advertisement of the application for
reinstatement, the patent has no authority to take action for
infringement.

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:
 1. Indemnity compensation – A patent owner may have lost profits for
infringement when they established the value of the patent.
2. Increased damage – Up to three times, compensation charges can be
charged in cases of will or violation of will.
3. 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:

1. 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)
2. Permanence injunction – A final order of a court which permanently
ceases certain activities or takes various other actions.
What can be patented?
Sections 3 and 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 Patents Act list non-
patentable subject matter. Unless the Invention comes under any provision of
Section 3 or 4, it means that it consists of a subject for a patent.

Novelty:
Innovation is an important criterion in determining the patent potential of an
invention. Under Section 2(l) of the Patent Act, a novelty or new Invention is
defined as “no invention or technology published in any document before the
date of filing of a patent application, anywhere in the country or the world”.
The complete specification, that is, the subject matter has not fallen into the
public domain or is not part of state of the art”.
Simply, the novelty requirement basically states that an invention that should
never have been published in the public domain. It must be the newest which
have no same or similar prior arts.

Inventive steps or non-clarity:

Under Section 2(ja) of the Patents Act, an inventive step is defined as “the
characteristic of an invention that involves technological advancement or is of
economic importance or both, as compared to existing knowledge, 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 should not be inventive and obvious for a person
skilled in the same field.

• Capable of industrial application:

Industrial applicability is defined in Section 2 (ac) of the Patents Act as “the
invention is capable of being made or used in an industry”. This basically
means that the Invention cannot exist in the abstract. It must be capable of
being applied in any industry, which means that it must have practical utility
in respect of patent.

These are statutory criteria for the patent of an invention. In addition, other
important criteria for obtaining a patent is the disclosure of a competent
patent. A competent patent disclosure means a patent draft specification must
adequately disclose the Invention, so as to enable a person skilled in the same
field related to carrying out the Invention with undue efforts.

TYPES OF PATENTS

Different types of patent applications exist so that inventors can

protect different kinds of inventions. Savvy inventors can utilize the
different kinds of patent applications to secure the rights they need
to protect their inventions.

There are four different patent types:

• Utility patent. This is what most people think of when they

think about a patent. It's a long, technical document that
teaches the public how to use a new machine, process, or
 system. The kinds of inventions protected by utility patents are
defined by Congress. New technologies like genetic engineering
and internet-delivered software are challenging the boundaries
of what kinds of inventions can receive utility patent
protection.
• Provisional patent. United States law allows inventors to file a
less formal document that proves the inventor was in
possession of the invention and had adequately figured out
how to make the invention work. Once that is on file, the
invention is patent pending. If, however, the inventor fails to file
a formal utility patent within a year from filing the provisional
patent, he or she will lose this filing date. Any public
disclosures made relying on that provisional patent application
will now count as public disclosures to the United States
Patent and Trademark Office (USPTO).
• Design patent. This patent offer protection for an ornamental
design on a useful item. The shape of a bottle or the design of a
shoe, for example, can be protected by a design patent. The
document itself is almost entirely made of pictures or drawings
of the design on the useful item. Design patents are notoriously
difficult to search simply because there are very few words
used in a design patent. In recent years, software companies
have used design patents to protect elements of user
interfaces and even the shape of touchscreen devices.
• Plant patent. Just what it sounds like, a plant patent protects
new kinds of plants produced by cuttings or other nonsexual
means. Plant patents generally do not cover genetically
modified organisms and focus more on conventional
horticulture.

Prepared by Sanabel Uzma