A patent is a statutory grant conferring certain monopoly rights on the grantee for a definite period, subject to certain conditions. In some respect it may be considered as a species of property. The owner of the “Patent”, i.e. patentee is entitled to deal with such property in the same manner as owner of any other moveable property.
(a) The patentee can sell the whole or part of this property (Patent).
(b) He can also grant license to other(s) to use the patented property.
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(c) He can also assign such property to any other(s).
Such sale, license or assignment of such patented property naturally has to be for valuable consideration, acceptable mutually. In respect of process patents relating to drugs and food, the term is five years from the date of sealing the patents or seven years from the date of the patent whichever is shorter.
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In respect of all other patents the term is fourteen years from the date of the patent. A patent is kept alive only by paying the renewal fee from time to time the Patents Act, 1970.
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There is no such thing as a common law right in inventions as in the case of trade marks. A patent when granted confers the exclusive right on the patentee to use the invention during the term of the patent, or so long as it is in force, on payment of the renewal fee from time to time.
The patentee may assign his rights or grant licenses to use the invention. There is an obligation cast on the patentee to work the invention on a commercial scale either by him or through licensees.
If the patentee does not do this any interested person may obtain a compulsory license to work the patent.
In respect of patents relating to drug or medicine or substances used as food, any person interested in working the patent, may obtain a license as a matter of right after a period of three years from the date of its grant.
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If in spite of compulsory licenses being granted the invention is not worked on a commercial scale, the patent is likely to be revoked on the ground of non-working by following the procedure prescribed.
Section 47 says that the grant of a patent under this Act shall be subject to the condition that-
(1) Any machine, apparatus or other article in respect of which the patent is granted or any article made by using a process in respect of which the patent is granted, may be imported or made by or on behalf of the Government for the purpose merely of its own use;
(2) Any process in respect of which the patent is granted may be used by or on behalf of the Government for the purpose merely of its own use;
(3) Any machine, apparatus or other article in respect of which the patent is granted or any article made by the use of the process in respect of which the patent is granted, may be made or used, and any process in respect of which the patent is granted may be used, by any person, for the purpose merely of experiment or research including the imparting of instructions to pupils; and
(4) In the case of a patent in respect of any medicine or drug, the medicine or drug may be imported by the Government for the purpose merely of its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the Government or any other dispensary, hospital or other medical institution which the Central Government may, having regard to the public service that such dispensary, hospital or medical institution renders, specify in this behalf by notification in the Official Gazette.
Rights of the patentee are provided through section 48:
(a) Subject in section, a patent granted after the commencement of this Act shall confer upon the patentee where the subject matter of the patent is 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 the 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 obtained directly by that process in India;
According to section 49, where a vessel or aircraft registered in a foreign country or a land vehicle owned by a person ordinarily resident m such country comes into India (including the. territorial waters thereof) temporarily or accidentally only, the rights conferred by a patent for an invention shall not be deemed to be infringed by the use of the invention-
(a) In the body of the vessel or in the machinery, tackle, apparatus or other accessories thereof, so far as the invention is used on board the vessel and for its actual needs only; or
(b) In the construction or working of the aircraft or land vehicle or of the accessories thereof, as the case may be.
(2) This section shall not extend to vessels, aircraft or land vehicles owned by persons ordinarily resident in a foreign country the laws of which do not confer corresponding rights with respect to the use of inventions in vessels, aircraft or land vehicles owned by persons ordinarily resident in India while in the ports or within the territorial waters of that foreign country or otherwise within the jurisdiction of its courts.
Section 50 provides that where a patent is granted to two or more persons, each of those persons shall, unless an agreement to the contrary is in force, be entitled to an equal undivided share in the patent.
Subject to the provisions contained in this section and in section 51, where two or more persons are registered as grantee or proprietor of a patent, then, unless an agreement to the contrary is in force, each of those persons shall be entitled, by himself or his agents, to make, use, exercise and sell the patented invention for his own benefit without accounting to the other person or persons.
Subject to the provisions contained in this section and in section 51 and to any agreement for the time being in force, where two or more persons are registered as grantee or proprietor of a patent, then, license under the patent shall not be granted and a share in the paten shall not be assigned by one of such persons except with the conserve of the other person or persons.
Where a patented article is sold by one of two or more presort registered as grantee or proprietor of a patent, the purchaser and an) person claiming through him shall be entitled to deal with the article if the same manner as if the article had been sold by a sole patentee.
Subject to the provisions contained in this section, the rules o law applicable to the ownership and devolution of movable proper generally shall apply in relation to patents; and nothing contained it section (1) or sub-section (2) shall affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or their rights or obligations as such.
Nothing in this section shall affect the rights of the assignees of a partial interest in a patent created before the commencement of this Act.
Section 51 provides that where two or more persons are registered as grantee or proprietor of a patent, the Controller may, upon application made to him in the prescribed manner by any of those persons, give such directions in accordance with the application as to the sale or lease of the patent or any interest therein, the grant of licenses under the patent, or the exercise of any right under section 50 in relation thereto, as he thinks fit.
If any person registered as grantee or proprietor of a patent fails to execute any instrument or to do any other thing required for the carrying out of any direction given under this section within fourteen days after being requested in writing so to do by any of the other persons so registered, the Controller may, upon application made to him in the prescribed manner by any such other person, give directions empowering any person to execute that instrument or to do that thing in the name and on behalf of the person in default.
Before giving any directions in pursuance of an application under this section, the Controller shall give an opportunity to be heard-
(a) In the case of an application under sub-section (1), to the other person or persons registered as grantee or proprietor of the patent;
(b) In the case of an application under sub-section (2), to the person in default.
No direction shall be given under this section so as to affect the mutual rights or obligations of trustees or of the legal representatives of a deceased person or of their rights or obligations as such, or which is inconsistent with the terms of any agreement between persons registered as grantee or proprietor of the patent.
Where a patent has been revoked under section 64, on the ground that the patent was obtained wrongfully and in contravention of the rights of the petitioner or any person under or through whom he claims, or, where in a petition for revocation, Appellate Board or court, instead of revoking the patent, directs the complete specification to be amended by the exclusion of a claim or claims in consequence of a finding that the invention covered by such claim or claims had been obtained from the Petitioner, the Appellate Board or court may, by order passed in the same Proceeding, permit the grant to the petitioner of the whole or such part of the invention which the Appellate Board or court finds has been wrongfully obtained by the patentee, in lieu of the patent so revoked or is excluded by amendment. Where any such order is passed, the Controller shall, on request by the petitioner made in the prescribed manner grant to him.
(i) In cases where the Appellate Board or court permits the whole of the patent to be granted, a new patent bearing the same date and number as the patent revoked;
(ii) In cases where the Appellate Board or court permits a part only of the patent to be granted, a new patent for such part bearing the same date as the patent revoked and numbered in such manner as may be prescribed:
Provided that the Controller may, as a condition of such grant, require the petitioner to file a new and complete specification to the satisfaction of the Controller describing and claiming that part of the invention for which the patent is to be granted.
No suit shall be brought for any infringement of a patent granted under this section committed before the actual date on which such patent was granted.
Subject to the provisions of this Act, the term of every patent granted, after the commencement of the Patents (Amendment) Act, 2002, and the term of every patent which has not expired and has not ceased to have effect, on the date of such commencement, under this Act, shall be twenty years from the date of filing of the application for the patent.
For the purposes of section 53(1), the term of patent in case of International applications filed under the Patent Cooperation Treaty designating India, shall be twenty years from the international filing date accorded under the Patent Cooperation Treaty.”;
A patent shall cease to have effect notwithstanding anything therein or in this Act on the expiration of the period prescribed for the payment of any renewal fee, if that fee is not paid within the prescribed period or within such extended period as may be prescribed.
Notwithstanding anything contained in any other law for the time being in force, on cessation of the patent right due to non-payment of renewal fee or on expiry of the term of patent, the subject matter covered by the said patent shall not be entitled to any protection.
Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely,-
(a) That patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay; and
(b) That they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article.
(c) That the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;
(d) That patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development of India;
(e) That patents granted do not in any way prohibit Central Government in taking measures to protect public health;
(f) that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which reasonably restrain trade or adversely affect the international transfer of technology; and
(g) That patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.
