Posted on 28 February, 2023 by Irika

ABSTRACT

An inventor who wants to safeguard their creation is given a legal right known as an intellectual property right. By prohibiting anyone from using or copying them for a predetermined period of time, the proprietor is able to enjoy their property without causing any disruption to others thanks to their legal right to protect their creation, innovation, symbol, design, etc. An intangible property created by human creativity is called intellectual property. Intellectual property comes in many forms, including patents, logos, copyrights, and others. In India, the development of commerce and technology can be attributed to the patent act's protection of new innovations. The Patent Act of 1970 also gave patent holders a number of rights to promote and protect their creation. By giving them exclusive rights to their innovations, this law assists in inspiring individuals to develop novel ideas in their respective fields. If a person wants to patent his or her invention he or she has to go through a detailed procedure which is mentioned in the act.

HISTORY

Act VI of 1856 was India's first act of patent-related law. The purpose of this law was to promote the creation of innovative and effective products and to persuade inventors to divulge their creations' secrets. Since the Act had been passed without the consent of the British Crown, it was later abolished by Act IX of 1857. Act XV of 1859, a new piece of law, was enacted in 1859 to allow for the granting of "exclusive privileges." Importers were not considered inventors under this law.

The Act of 1859 was merged in 1872 to offer security for designs. Act XIII of 1872 changed the wording of the law to "The Patterns and Designs Protection Act,"and it was later amended in 1883. This law was amended once more in 1888 after remaining in effect for 30 years. In 1972, the current Patent Act, 1970, which further amended and combined the prior legislation pertaining to patents in India, went into effect. The Patents (Amendment) Act, 2005 further modified this law by extending the application of product patents to all or any technological areas, including those involving food, drugs, chemicals, and microorganisms.

Provisions pertaining to Exclusive Marketing Rights (EMRs) were removed by this amendment, but pre-grant and post-grant opposition as well as the ability to award compulsory licences were added.

PATENT -

A patent is an exclusive right given to an invention, typically a product or method that offers a novel approach to an issue or a new technological remedy. A patent application must contain precise details about the innovation in order to be granted a patent. For enhancements to their prior invention, a copyright is also possible. By giving them exclusive rights to their creations, patent laws are primarily intended to motivate innovators to make greater contributions to their fields. The word "patent" nowadays typically refers to the privilege given to a creator for the creation of any brand-new, invention, and non-obvious method, equipment, manufactured good, or material mixture. An idea is deemed to be novel if it has not previously been disclosed to the public, whether orally, in writing, or in any other way, as of the application submission date. If something is already in the public realm, it cannot be considered innovative. The patent has a finite lifespan of 20 years, beginning on the application's submission date. An exclusive privilege is a trademark. Therefore, it can only be utilised in the nation in which it was approved. An exclusive privilege is a trademark. Therefore, it can only be utilised in the country in which it was approved.

Rights and obligations of the patentee

Right to Patent Exploitation:A patent holder in India has full legal authority to produce, use, exploit, share, or market any patented goods or processes, as well as to carry out any related actions. Both the patentee individually and his licensees or agents are permitted to use this right. Only for the duration of the copyright holder's life are their rights available.

Right to Issue Licenses: The patent proprietor has the right to charge a price in exchange for granting licences, transferring rights, or entering into other agreements. A claim or transfer must be written down and confirmed with the Controller of Patents in order to be legitimate. Until it is filed, the patent assignment paperwork cannot be used to establish a person's patent ownership. The designee, not the assignor, is covered.

Rights of Surrender:A patent user may relinquish their patent, but before doing so, notification of the submission must be sent to everyone whose names are on the registry. In order for interested parties to raise objections, the submission application is also published in the Official Record.

Right to Bring a Lawsuit for Patent Infringement:If a patent is violated, the patent proprietor has the full legal right to bring a complaint before the appropriate district court.

Patentee’s Obligations

Patents Used by the Government:A patented innovation may be used, or even purchased, by the government for its unique use. However, it should be noted that the government may, in some circumstances, forbid or limit the use of the patent. In the event that a medicine or prescription is patented, the government may import it for distribution or use in any hospital, dispensary, or other healthcare centre set up on behalf of the government.

Compulsory license : A compulsory licence is a permission given by the government to another person, a third party, to manufacture a patented product without the agreement of the patent owner who has been abusing the exclusive rights provided by the patent. Therefore, compulsory licencing aims to prevent the abuse of patent rights by a patent proprietor in light of public health or anti-competitive behaviours that would result in limiting trade or preventing technology transfer.

Revocation of a patent:If no work has been done or the public's desire for the patented invention has not been high, the patent may be revoked.

Patent Infringement

The use, creation, selling, or offer to sell of the invention covered by another person's copyright without their permission is known as patent infringement. Utility, design, and plant patents are just a few examples of the many various kinds of patents that exist. The fundamental principle of patent infringement is that patents may not be used by illegal parties without the owner's consent. When there is patent infringement, the court typically compares the subject matter covered by the patent with the subject matter used by the "infringer." Infringement happens when the infringer uses material from the patent in its precise form. Any unlicensed production, distribution, or application of a copyrighted innovation constitutes a patent infringement.

Remedies

Patent infringement is the illegal production or use of an innovation or improvement of another person's creation that is covered by a government-issued patent without the owner's permission, licence, or release. The choices available to patent owners in the case of violation are numerous. In patent infringement lawsuits, potential solutions could be financial compensation, equitable relief, and legal fees. According to Section 108 of the act, a court may issue an order subject to the conditions, if any, that it deems appropriate as well as, at the plaintiff's discretion or option, either penalties or an account of profits in any action for infringement.

Landmark Judgements

1. Hoffmann-La Roche Ltd vs Cipla Ltd., Mumbai Central

After independence, this was the first case of patent infringement. In this case, the plaintiff relied on the defendant's temporary injunction against the sale of generic drugs. The court rejected the plaintiff 's plea by saying that the sale of the plaintiff 's patented product was for public interest and also a case of a counterclaim for the revocation of the patent was ongoing in another court proceedings.

2. Dr Snehlata C. Gupte v. Union of India & Ors

In this case, the court cleared the the most important point that is related to the date as to when the patent could be considered to be granted. According to some person‘s the patent is granted as soon as the decision for its non-rejection from the patent granting authority comes. However the court in this case held that the issue of a certificate in case of granting patents is a mere formality which means patent could not be considered to be granted.The application for the grant of a patent would be considered to be accepted once the controller passes the order.