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renu garg

renu garg (Querist)
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12 August 2009 what is patents

Prashant

Prashant (Expert)
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12 August 2009 Patents Act, 1970

Patents Act, 1970 is designed to protect inventions in respect of manufacture, machine or process of manufacture. On the other hand, the Copyright Act, 1957 is to protect rights of artists, authors, producers of films, computer software owners etc. Patent is an exclusive rights granted to the patent holder, for a limited period, as a reward for creative work based on his private initiative. ‘Creativity’ is accorded the status of ‘property’ which can be bought, sold, licensed or hired like any other commodity. The principle behind patent protection is that creativity will not get encouragement if it cannot be protected from pirating or copying.

Major changes have been made by Patents (Amendment) Act, 2002, which was passed on 25-6-2002 aligning it to TRIPS in many aspects. Highlights are - * It provides for uniform protection for 20 years. * Appellate Authority is provided. Appeal against order of Controller and Central Government and application for rectification of register of patents will be to appellate Board and not to High Court. [However, suit for infringement of Patent or revocation of patent will lie with Court only] * Person other than patent holder to obtain marketing approval from regulatory authorities within 3 years before expiration of terms of patent * Provisions for protection of bio-diversities of traditional knowledge * Reversal of burden in case of process patent * Procedural simplifications.

The amendments have not yet been brought into force. However, these have been incorporated in this write up at appropriate places.

What is a Patent - Section 2(1)(m) merely states ‘Patent’ means a patent granted under this Act’. - - Thus, word ‘patent’ is not defined under the Act, though what can be patented and what cannot has been specified. - - A patent, generally speaking, is a grant from Government, which confers on the grantee for a limited period of time the exclusive privilege of making, selling and using the invention for which a patent has been granted and also of authorising others to do so.

Varieties of Patents - Three kinds of patents are granted under the provisions of the Act : (a) Ordinary patent (b) Patent of Addition (c) Patent in respect of convention

International Application - Patents Act allows grant of patents to persons out of India, on the basis of international arrangements. Such grant is available only if there is a convention, treaty or arrangement with the foreign country for grant of patents on reciprocal basis i.e., if that country also agrees to grant patents to Indian applicants (section 133). Government has to specify such countries by issue of notification in official gazette. India has signed Paris Convention in August 1998. Hence, any country which is signatory to Paris convention is a convention country.

What can be patented - Requirements of patent are : (a) The subject matter should be new. This is test of ‘novelty’. (b) It should be useful. This is test of ‘utility’. (c) It should be an ‘invention’. It should be non-obvious. (d) It should be a manner of manufacture, i.e. it should be capable of industrial application. (e) ‘Vendibility’ test (i.e. test of marketability) is important - the subject matter should have commercial purpose. Any invention which satisfies the definition of the ‘invention’ given in the Act may be patented.

Invention means a new product or process involving an inventive step and capable of industrial application. [section 2(1)(j)]. - - ‘Inventive step’ means a feature that makes the invention not obvious to a person skilled in that art. [section 2(1)(ja). ‘Capable of industrial application’, in relation to invention, means that the invention is capable of being made or used in an industry. [section 2(1)(ac)].

Life of Patent - Subject to the payment of prescribed renewal fee within the prescribed period, the term of every patent granted under the Act is do years from date of filing the application for patent. [section 53(1)]. [The period was 5 or 7 years for process of manufacture of food/medicine/drug and 14 years in other cases, prior to Amendment Act, 2002].

Rights of a patentee - Patentee has following rights (a) where the patent is for a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India (b) where the subject matter of patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product directly obtained from that process, in India. However, that product should not be such that no patent can be granted for that product in India. [section 48].

Working of patent and compulsory licensing - The general principle is that patents are granted to encourage inventions. However, Patent is for use and not for hoarding or exploitation.

Infringement of Patent - Patentee and his agents and licensees have exclusive rights to make, use, exercise or distribute the invention in India under section 48. Infringement means violating the statutory rights of patentee. Innocent infringement, i.e. infringement without knowledge that a patent exists does not require payment of damages and a share of profit (section 111). Suit for infringement can be filed only in District Court (section 104). The reliefs that can be claimed are (a) damages and a share of profit to patentee. (b) Injunction on infringee on the terms the Court may deem fit [section 108(1)]. Court can also order that the infringing goods shall be seized, forfeited or destroyed, as the Court deems fit. [section 108(2)].