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Table of contents
1.
Introduction
2.
History
3.
Patentee
3.1.
Rights of Patentee
4.
Requirements To Qualify As an Invention
5.
What cannot be Patented?
6.
Filing Application for Patent
7.
Compulsory License
8.
Frequently Asked Questions
9.
Conclusion
Last Updated: Mar 27, 2024
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Patent Law

Author Apoorv Dixit
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Introduction

The term "patent" refers to the right given to anyone who invents something new, useful, and non-obvious. It prevents others from using, making, or selling an invention for a set period of time. For improvements to their previous invention, a patent is also available. The main aim of patent legislation is to encourage inventors to contribute more to their fields by providing them exclusive rights to their inventions.

 Source: patentrebe
 

In this article, we will discuss patent law and how it came into effect. Let’s start our discussion with the history of patent law in India.

History

The Indian Patents and Designs Act was enacted in 1911, marking the beginning of the country's patent law. Following that, in 1972, the current Patents Act 1970 took effect, amending and consolidating India's existing patent legislation. The Patent Act is largely based on the recommendations of the Justice Ann report, an Ayyangar Committee led by Lyengar Rajagopala. The granting of process patents related to drug, food, and chemical inventions was one of the recommendations. The Patents (Amendment) Act of 2005 amended the Patents Act of 1970 to allow product patents to be extended in all technology areas, including food, medicine, chemicals, and microorganisms.


source: managingip

The Patent Act is a branch of intellectual property law that deals with new inventions. There are two types of patents, according to the Patents Act of 1970: 

  1. product patents and 
  2. process patents. 

The process patent is the journey of a patent being produced, while the product patent is the result or output production of a product. Both new processes and products involve an inventive step and are capable of industrial application qualify as inventions under the Patent Act.

Now, let us discuss who is a Patentee?

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Patentee

A patentee is a person who is currently listed as the grantee or patent proprietor in the patent registry. The patentee should have the right to deal with his property in the same way that any other movable property owner would deal with his property.

Rights of Patentee

A patentee's rights are discussed in Section 48 of the Act.

  1. If the patent is for a person, the patentee has the exclusive right to use, sell, exercise, or distribute the patented article or substance in India. This right can be exercised by the patentee himself and his agents and licensees. The patentee's rights are only exercisable during the patent's term.
  2. A patentee can transfer rights, grant licenses, or enter into another arrangement for a fee. To be legitimate and valid, a license or assignment must be in writing and registered with the Controller of Patents.
  3. The document assigning a patent is not admissible as evidence of any person's title to a patent unless it is registered, and this only applies to the assignee, not the assignor.
  4. A patentee has the choice of surrendering his patent, but before doing so, a notice of surrender is sent to all persons whose names are in the patent register as having an interest in the patent, and their objections, if any are considered. The surrender application is also published in the Official Gazette so that anyone who is interested can object.
  5. A patentee has the right to file a lawsuit in a District Court with jurisdiction over the case for patent infringement.

Requirements To Qualify As an Invention

There are also some requirements that the invention should fulfill. Only after that, it can be patented. The requirements are as follows:

  1. It must be a novel invention. I.e., the invention must be new, in the sense that it has never been done before.
  2. The invention must be non-obvious because it must be a significant improvement over the previous one; a simple change in technology will not grant the inventor the right to a patent.
  3. The invention must be useful in a legitimate way; it must not be used solely for illegal purposes and must be useful to the world in a legitimate way.
  4. An inventive step must be included in an invention.
  5. The invention must be capable of industrial application or utility. It must not fall under the category of non-patentable inventions as defined by Sections 3 and 4 of the Patent Act of 1970.

What cannot be Patented?

Section 3 discusses the exceptions to which subject matters are not patentable.

1) Irrational Inventions: These go against natural laws. For example, if an invention is powered solely by human blood. This would be against natural laws and would fall under frivolous inventions. There is always something working against the establishment of natural laws.

2) Inventions that are in violation of public order or morality or that harm the environment.

3) Any discovery, including the discovery of scientific principles. For instance, Newton's theories and other principles. How will students study these theories if they are not freely available in the public domain and if they are patentable?

4) A patent cannot be issued to simply discover a known substance.

Filing Application for Patent

There are two ways to file a patent: provisional specification and complete specification. After 18 months from the date of filing, the patent will be published. If a person wants his patent published sooner than 18 months, he must pay the statutory fee for publication. A required form must be filled out, or a fee must be paid. The jurisdictional rule must be followed, and the application must be filed in accordance with the jurisdiction. The second step in the publication process is to submit a request for examination within 48 months.

The first step is to obtain a voluntarily issued license. You can apply for a compulsory license on three different grounds. After the patent has been granted for three years, the license can be requested at any time. Anyone can request a compulsory license. It doesn't matter if it's a natural person, an artificial person, or a corporation.

The third step is the examination, which is not automatic like the publication and requires the applicant to fill out the necessary form. It can be filed on behalf of the applicant by anyone. The application must be filed within 48 months of the priority date. According to the patent orientation, the patent examiner will be. On the three important criteria for the patent, the patent examiner will check the patent database and other credentials. Sections 3 and 4 will be checked for applicability by the examiner. The examiner will also check for clerical errors.

It is also necessary to adhere to the drawing sheets and formatting guidelines. After the examiner has confirmed that the patent is genuine, the first examination report will be created. The applicant must respond within 6 months of receiving the first examination report. If the examiner requires additional clarification for the invention after receiving the examination response, he must have the applicant present physically or via video conference.

Compulsory License

One of the most important aspects of the Indian Patents Act 1970 is compulsory licensing, subject to certain conditions. Interested party may apply to the Patent Controller for issuing a compulsory patent license at any time after the patent has been sealed for three years, subject to the following conditions. A voluntary license is one that allows someone to use a product without having to pay for it. 

The first step is to obtain a voluntarily issued license. You can apply for a compulsory license on three different grounds. After the patent has been granted for three years, the license can be requested at any time. A compulsory license can be requested by anyone. It doesn't matter if it's a natural person, an artificial person, or a corporation.

Frequently Asked Questions

  1. How long is a patent valid in India?
    Every patent granted has a 20-year term starting from the date of application.
     
  2. Who owns the patent?
    Unless a written assignment is made or the inventors are obligated to assign the invention, such as an employment contract, a patent application, and any resulting patent belongs to the inventor(s) of the claimed invention.
     
  3. Who gives patents in India?
    The Office of the Controller General of Patents, Designs, and Trade Marks (CGPDTM), generally known as the Indian Patent Office, is an agency under the Department for Promotion of Industry and Internal Trade that administers the Indian law of Patents, Designs, and Trade Marks.
     
  4. What is the importance of patent law?
    Patent law is crucial because it encourages technological innovation. It promotes research and development by safeguarding innovators' rights. Patent law establishes consistency and aids the inventor in registering his or her patent.
     
  5. Can a patent be licensed?
    A patent owner can license his invention for various reasons, including a lack of funds or manufacturing facilities, so he grants a license to a third party to make, sell, and distribute his patented invention in exchange for 'royalty.'

Conclusion

In this article, we have extensively discussed the patent law. We discussed its history,  patentee and his rights, inventions, and non-inventions and also discussed filing a patent. We hope that this blog has helped you enhance your knowledge regarding patent law. If you would like to learn more, check out our articles, Cyber Security PrincipleWhat is Cryptography, and Cyber attacks and their Types

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