INTRODUCTION TO PATENT AND RIGHTS OF PATENTEE
Author : VAIBHAV RAMDAS MISAL (Maharashtra National Law University)
Co-Author : MOHAMMED ZAHID (Maharashtra National Law University)
WHAT IS A PATENT?
Patent is an instrument granted by authority to an inventor giving him exclusive right to use, sell or license his invention for a period of 20 years. Patent law in India is governed by Patent Act,1970, in which Section 2(M) defines what a patent is. Patent Law is that area of law deals with an investor’s exclusive rights. This prohibits the other person from duplicating the product.
Patent is long term holding license, it is the best known and preferable in economically way. Right of Patentee/Owner over his patent stops other people from using his/her invention from wrongful means. A patent can also be referred as a license to patentee to use, sell or produce his patent invention. It is a precious form of protecting a right. Patent is an honor gift or reward to an intellectual person for it’s who use his own skills, time, money, power and risk to innovate a something new. The monopoly is given for a limited period of time. Till this period of time the inventor will recover all money and time he invested especially for the risk taken by inventor.
HISTORY/BACKGROUND OF PATENT
Idea of Patent Originated in Europe, German mines of Alps, and developed in 13th century. Patent were granted in 15th century in two Italian states. The modern patent law was introduced by state of Venice in 1474, it was granted to anyone who evolved a novel technique, for period a period of 10 years, strict actions were taken against the infringer, the infringer had to pay 100 ducats fine.
Queen Elizabeth granted patent letters not for any creative work or invention. The patent letter was granted for the monopoly in a specific kind of business. English monarch issued it for product imported in to country. People were very upset and dissented this system. In 1624, the monarch declared this rule as illegal because it created strong monopoly, which doomed the competition. The patent letter was only given to the inventor of a product. The period of protection was 14 years. The patents were instrument under great seal of king of England addressed by the crown to all subject crown gave rights on.
In India 1859 was the year where inventors were given protection for its product.
Bishwanath V H.M Industries, the Supreme Court observed that the fundamental principle of patent law is to give a patent only for an invention which must be novel and useful. It is essential for the validity of a patent that it must be the inventor’s own discovery as opposed to a mere verification of what was already known before the date of invention.
Novelty / Newness
For an invention to be patented the product should be new, and the product should not be available in public before. The work should out of whole new process. It should not be existing or common thing. The innovation should be beyond the reasonable knowledge of a average human or working person of that field. The invention should not be obvious in nature. The product should not have existence, before. This ingredient of novelty is very essential for pursuing or obtaining a patentee on the product. There is no novelty if there is publication before. USA grant on a turmeric product was opposed on the ground by the Indian council of scientific and industrial research (CSIR). They challenges the grant of patent on turmeric by the US patent Office on the plea that patent could not be granted since there was no novelty in the invention. The patented product already existed in India. The patent was revoked by united stated Patent Office.
WHO IS A PATENTEE?
A Patentee is a person for the time being entered in the register of patent as the grantee or proprietor of patent. It can also be referred as a person or organization that obtains or holds a patent for something. Patentee is the one to whom patent has been granted. Patents is entitled to deal with his such property deals with property. Whereas a Patent is a contract between the person/company and its users or customers.
RIGHTS OF A PATENTEE
Rights are conferred upon the patentee so rights and obligations regarding the Patent are not infringed. Section 49 of Patent Act, 1970 defines the rights of Patentee towards his Patents. These rights prevent his patent from the third parties and making the patentee easier to buy, sell or produce his patent. Also, the patent right is not an absolute right. The patent maintains equal balance between the induvial rights of patentee and the interest of general public. Following are the major rights of the patentee;
Right to Apply for Patent of Addition (Section 54 to section 56)
Here the patentee is awarded with this right so that he can conduct more research in his patentee without any interruption and also can exploit his patentee at a large. Which will also help the patentee in making more improvement or needed modification in the invention. Or can also help the patentee in attending the desired specification in the patent.
Right to assign or license the Patent (Section 70)
This right gives the patentee total freedom to do many things with his patent like buying, selling, using or even exploring the patent. In this the Patentee in form of company or person has the total access over his patent to buy, sell, import the patent and his rights. This right can make the patent as well as the patentee make a great reach through out everywhere and can be introduced to many audiences at a large.
Right to sue for infringement of patent
This right can be exercised anytime by the patentee if the patentee observes any infringement or violation of any right in the case of his patent and its interest. This right can help him to prevent the patentee from the 3rd party users to use/charge the patent without knowing the patentee. He can sue the license holder of his patent if the patentee observes any infringement from the part of license holder of his whether if may be modification or unlawful use of the patent.
Right to surrender the Patent to another (Section 63)
Here the patent holder wishes to decide to surrender or handover the patent he is permitted do so. The patentee can do so anytime by sending a formal notice in a prescribed manner over the time, including to inform the license holder and its user. This can be done to protect the interest of others.
Right to make a convention application
Herein, a basic or convention application can be made by the Patentee under the section 135 of Patent Act,1970 for protection of his patent in other countries in case of international instrumentation between India and other foreign countries. Generally, this right is dependent on the principle of ‘Reciprocity & National treatment’.
Right to be issued duplicate patent (Section 154)
If a patent holder loses, destroyed or its production is explained non satisfactorily to the controller then the patentee has a right to apply for duplicate patent.
USEFULLNESS AND APPLICATION OF PATENTS
Usefulness is the second ingredient for granting a patent. The invention which has applied for the patent should be Non –obvious in nature and useful, it should be useful in nature. It should have impact on current situation and should have essence of utility. The product will not get patented application, unless it does not have industrial utility concept. The product should carry economic benefit. The product or process is expected to be very practical in nature and if it has no benefits to the mankind in this sought this will not be entertained and discarded in the course of time by seeing its condition in the current demand/usefulness.
Which of the following Inventions are Patentable;
- The subject matter of the Patent should be new.
- It should involve new and innovative steps.
- The invention must be useful as well as capable for the use of Industry and the nature.
The steps or the concept of making a product should be more than a simple workshop of improvement. It has to be mere, new and extraordinary in nature. Should not be present before. The work should have no anticipation to earlier work. In the case, Bishwanath Prasad V Hindustan Metal Industries [(1979) 2 SC 511] it was held in Supreme Court that the object of patent law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own use or sell the, method or the product patented for limited period time, this stimulates new invention of commercial utility. The price of the grant monopoly is the disclosure of the invention at patent office, which after expiry of the fixed period of the monopoly, passes in to the public domain.