Business Regulations IV Semester B.
Com
Unit – 4 Economic Laws
What is a patent?
Patent, under the Act, is a grant from the Government to the inventor
for a limited period of time, the exclusive right to make use, exercise
and vend his invention. After the expiry of the duration of patent,
anybody can make use of the invention.
A patent is an invention based legal documents that defines and
provides the bearer with exclusive rights to exclude other from
producing, selling or distributing the invention.
What is an invention
Invention means any new and useful
a. art, process, method or manner of manufacture
b. machine, apparatus or other article
c. substance produced by manufacture
and includes any new and useful improvement of any of them, and
alleged invention
Rights of the Patentee [10 marks]
The following are the rights of the patentee:
1. Right to exploit the patent: the owner of the patent is granted
the right to manufacture, use, sell and distribute the patented
item in India. If the invention is a procedure of protection the
patentee has the right to excises and direct the method of the
process.
2. Right to assign and license: the owner of the invention is
granted powers to deal with the patent in considerations of
granting or assigning of license to others. In case there is more
than one inventor, the co-owner can delegate his rights to the
granting of license with permission of the collegue in the
invention and authorised by the controller.
3. Right to surrender the Patent: a patentee with the permission
of the decide to surrender the patent. When such case arises, the
controller will advertise the patent in line with the rules governing
the process in which he will notify the parties interested in the
offer.
4. Right before sealing: Section 24 implies that a patent is sealed
from the date of notification for acceptance to the date of
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acceptance of the notification. The right of the patentee begins
after the notification for acceptance has been presented.
5. Right to apply for the patent of addition: that is expressed
in section 54 to 56 of the act. A patent of addition allows for the
modifications in an existing invention and an applicant for
notification of acceptance is granted the rights to the patency of
the same product or idea.
6. Right to make convention application: an Indian patentee
can apply for the protection of his patent in a convention in other
countries.
7. Right in case of Infringement: when any of the rights of the
patentee is violated, then it is an infringement. When the
invention of the patentee is distributed, sold, used and
manufactured within India, the right of the patentee has been
violated. In case of an infringement, the owner of the invention
can approach a district court of competent jurisdiction to
entertain the case.
8. Right to be issued duplicated patent: the act states that the
patentee has the right to apply to the controller to issue a
duplicate patent in event of theft or damage to the original.
9. Right to be supplied copies and certificates: this allows the
patentee to be issued with certified copies of the patents after
the payment of a fee.
Duties of the patentee
1. Duty to disclose:
Sec 8 of the Indian Patents Act, 1970 deals with the duty to disclose of
the applicant. Section 8(1) tells that the applicant has the duty to
disclose all the information regarding the corresponding foreign
applications of same or similar invention filed by him or through him by
somebody by him at the time of applying or within six months of
applying.
2. Duty to request for Examination:
Unlike any other IPR registration process Patent registration process
does not provide for automatic examination of the application. In this
process, according to sec 11(B) of the Patents Act, 1970, the duty is
cast on the applicant himself to request the controller of the patents to
examine the invention applied for patent.
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3. Duty to respond to objections:
The controller after receiving the examination request forwards it to
the examiner who examines the invention and gives a First
Examination Report (FER). In case there are any objections raised in
the FER, it is the duty of the applicant to respond to the objections and
comply to the same within 12 months of the issuance of the FER failing
which the application would be deemed to be abandoned.
4. Duty to clear all objections:
It is the duty of the applicant to not only respond to the objections
raised but also to clear all the objections as well as oppositions raised
against his invention. If the controller is still not satisfied he may call
for a hearing as well.
5. Duty to pay statutory fees:
Last but not the least it is the duty of the applicant to pay all the
statutory fees required to get a patent in the registration process
without fail otherwise, his application will not be dealt with. Sec 142
deals with the provisions related to payment of fees as well as the
consequences for non-payment.
Procedure for Grant of Patent
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Filing: applicants choose a submission category – i.e., national,
regional or international – and file an application. The initial filing
is considered the “priority filing” from which further successive
national, regional or international filings may be made within the
‘priority period’ of one year, in accordance with the Paris
Convention for the Protection of Industrial Property.
Formal examination: the patent office ensures that all
administrative formalities have been met, that the relevant
documentation has been included in the application, and that all
associated fees have been paid.
Prior art search: in many countries the patent office carries out
a search of the prior art – all relevant technological information
publicly known at the time of filing the application. Using
extensive databases and expert examiners in the specific
technical field of the application, a ‘search report’ is drafted that
compares the technical merits of the claimed invention with that
of the known prior art.
Publication: in most countries, the patent application is
published 18 months after the priority date; i.e., after the date of
first filing.
Substantive examination: if a prior art search report is
available, the examiner checks that the application satisfies the
requirements of patentability – that the invention is novel,
inventive and susceptible to industrial application, compared to
the prior art as listed in the search report.
Grant/refusal: the examiner may either grant the patent
application without amendments, change the scope of the claims
to reflect the known prior art, or reject the application.
Opposition: many patent offices allow third parties to oppose
the granted patent within a specified period on the grounds that
it does not satisfy patentability requirements.
Appeal: many offices provide the opportunity for an appeal after
the substantive examination or after the opposition procedure.
Foreign Exchange Management Act
The Government of India formulated FEMA or Foreign Exchange
Management Act to encourage the external payments and across the
border trades in India. It was formulated in the year 1999 while it
replaced FERA (Foreign Exchange Regulation Act). This was meant to
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close all the loopholes and drawback of FERA and hence major
economic reforms were introduced under this act. It was primarily
formulated to de-regularize and have liberal Indian economy.
Features off FEMA Act 1999
Following are the main features of Foreign Exchange
Management Act, 1999:
1. FEMA gives power to the central government for imposing restriction
on activities like making payments to a person situated outside of the
country or receiving money through them. Apart from this, foreign
exchange as well as foreign security deals is also restricted by FEMA.
2. Transactions revolving around foreign security or foreign exchange
as well as payments made from any foreign country to India cannot be
made without specific or general permission of FEMA. All transactions
must be carried out via an individual who has received authorization
for the same.
3. The central government can restrict an authorized individual to carry
out foreign exchange deals within the current account, on the basis of
general interest of the public.
4. Even though drawing or selling of foreign exchange is carried out via
an authorized individual, the FEMA act empowers the Reserve Bank of
India to place a number of restrictions on the transactions of the
capital account.
5. Under the act, the Indian residents have the permission to conduct
foreign exchange and foreign security transactions or the right to hold
or own immovable property in a foreign country in case the security,
property or currency was acquired or owned when the individual was
based outside of the country, or when they inherit the property from
another individual staying outside the country.
Important Definitions
Authorised Person’
Section 2(c) of Foreign Exchange Management Act or FEMA states that
‘authorised person’ means an authorised dealer, money changer, off-
shore banking unit or any other person authorised under section 10 (1)
to deal in foreign exchange and foreign securities. These are
authorised by RBI under section 10 of FEMA to deal in foreign
exchange.
Person includes: -
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a. An individual
b. A Hindu Undivided Family (HUF)
c. A Company
d. A firm
e. An association of persons or body of individuals, whether
incorporated or not
f. Every artificial judicial person not falling in any of the above sub-
clauses
g. Any agency, office or branch owned or controlled by such person.
Resident / Non-Resident: - If an individual stays in India for more
than 182 days during the course of the preceding financial year, he will
be treated as a person resident in India. There are a few exceptions as
under:
If a person goes/stays outside India for (a) taking up
employment, or (b) carrying on business or vocation, or (c) for
any other purpose for an uncertain period; he will be treated as
a person resident outside India (non-resident). (It has been
clarified that students going abroad for further studies will be
regarded as non-residents.)
If a person who is residing abroad comes to/stays in
India only for (a) taking up employment, or (b) carrying on
business or vocation, or (c) for any other purpose for an uncertain
period; he will be treated as a person resident in India.
The term financial year means a twelve-month period beginning from
April 1 and ending on March 31 next.
Following persons (other than individuals) will be treated as person
resident in India:
Person or body corporate which is registered or incorporated in
India.
An office, branch or agency in India, even if it is owned or
controlled by a person resident outside India.
An office, branch or agency outside India, if it is owned or
controlled by a person resident in India.
The definition is however inadequate to define residential status of a
firm, an HUF, a trust or any entity which does not have to be
registered.
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