Rights of patentees

Rights of patentees

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Meaning of Patent

According to the Cambridge dictionary, “Patent is the legal right to make or sell an invention [1] for a particular number of years”. [2]

In general terms, Patent is a government authority license conferring a right or title for a set period, especially the sole right to exclude others from making, using or seeking an individual’s invention.

The patent is to ensure the intellectual property rights of an inventor [3]. The patent enthrones the inventor with the total rights of an invention. By the grant of a patent, the inventor has all rights to regulate the product like how it can be used, who can use it and to what extent it can be applied. To take the patent of an invention, the inventor has to file an application for the grant of patency. There is a formal process after which the patent is granted.

Who is Patentee?

A patentee is a person who is entered in the register of patents as the grantee or proprietor of a patent for the time being. The person to whom the patent has been granted is known as Patentee. The Patentee is entitled to use the property or invention in the same manner as the owner of any movable property.

Meaning of infringement

Patent infringement means the violation of a law or right. Infringement means when an individual uses the invention or a product with a valid patent but without the authorization of a patented or inventor. There are mainly two types of infringement

  • Direct infringement 
  • Indirect infringement

The Patent Act 1970

The rights of the Patentee have been enshrined under section 48 to section 50[4]. The Patent Act was passed in the year 1970 and came into force on 20 April 1972. The Act was also amended in the year 2005.

To all rights which are granted to the Patent, Section 47 of the Patent Act 1970 applies certain conditions on the enjoyment of these rights. The conditions are as follows:

  •  The government for the purpose of its own use may manufacture or import the patented invention.
  • Any process in respect of granting patents may be used by the government or on behalf of the government for the purpose of its own use only.
  • Any patented product can be used for the purpose of research, experimentation or for teaching purposes.
  • In respect of patent of any drug or medicine, the drug or medicine can be imported by the government for the purpose of its use or for distribution in any hospital, dispensary, or medical institution which is maintained by the government or on behalf of the government.[5]

Rights of Patentee – Section 48

The Patentee has the following rights:

  • As the patent is for a product, the patent provides the exclusive right to the Patentee to prevent third parties, from the act of making, using, offering for sale, selling or importing for those purposes, that product in India without the consent of the Patentee.
  • The subject matter of a patent is a process, the exclusive right to prevent the third party from the act of using that process of using, offering for sale, selling or importing for those purposes without the consent of the Patentee.

Section 49: Patent rights not infringed when used on foreign vessels etc, temporarily or accidentally in India. 

This section of The Patent Act states that any vessel or aircraft which has been registered in a foreign land or has been owned by a person who is a resident of that foreign land accidentally or temporarily comes to India, the rights which are conferred by a patent for an invention shall not be deemed to be infringed by the use of the invention –

  • The body of the vessel or apparatus or other accessories can be used only as far as the invention is used on board and the vessel is used for its actual needs only
  • in the construction or working of the aircraft or land vehicle

Subsection 2 of Section 49 states that this particular Section shall not extend to such vessels or aircraft or land vehicles which are owned by persons who are the ordinary residents of that foreign land or country whose laws does not confer with the corresponding rights with respect to the use of inventions of vessels, aircraft, which are owned by the ordinary residents of India.

What is co-ownership of patents?

When two or more persons jointly held the patent for an article and can sell, use, make and license the patented invention jointly, then this is known as co-ownership of patents. The parties involved in such ownership are individuals or companies. When two or more people create patented inventions together then they are known as co-inventors. In co-ownership even if one inventor does more work than other individuals then also they both are part of the creation as they have invented together. Co-ownership of patents sometimes can create a messy situation because no single patent owner has the right to grant an exclusive license and also they cannot stop other Patentee to stop others from licensing the patent. In the Patent Act 1970, there are certain rights for the co-owners of patents which are as follows

Section 50: Rights of co-owners of patents

Subsection 1 of this section says that when a patent is granted to two or more persons each of those persons is entitled to be an equal undivided share in the patent, until and unless a contrary agreement is in force.

Subsection 2 states that the provisions which are contained in section 50 and in section 51 where two or more persons are registered as the patentee unless, an agreement which is contrary, is in force, each of these persons is entitled to the rights, which are enshrined in section 48 (by himself or by his agents) but the rights are for his own benefit and does not account to other person or persons.

Subsection 3 states that When two or more persons are the patentees then a license under the patent shall not be granted and the share in the patent shall not be assigned to any individual without the consent of other person or persons.

Subsection 4 of Section 50 says that the article which is Patented by two or more persons is sold by one or of two or more persons who are registered as the grantee of the patents, the purchaser of the article is entitled to deal with the article in the same way as it has been sold by an individual Patentee.

Subsection 5 states that the rules of law applicable to the ownership and devolution of movable property shall apply to patents and nothing which is contained in subsection 1 and subsection 2 of this article should affect the mutual rights or obligations of trustees, or the legal representative of the deceased partner on their rights or obligations.

Subsection 6 states that nothing which is mentioned in this Act shall affect the rights of the assignees of a partial interest in Patent which is created before the commencement of The Patent Act.[7]

There are also other Rights of the Patentee which are conferred under the act which is as follows:

  • To exploit the patent:  The owner of the patent has the right to manufacture, sell, and distribute the patented article or item in India. And if the invention is a procedure the Patentee has the right to direct the procedure.
  • To license the patent to another person (Sec 70): the owner of the invention has the rights to assign or grant the license to other individual and if it is a case of co-ownership then with the permission of the colleague, the individual can delegate the powers of the patent to another individual.
  • Right to surrender the patent(Sec 63): Patentee can surrender the patent with the permission of the controller[7]. In such cases, the controller generally advertises the patent and notify the interested parties. When interested parties come to the controller and controller finds the party condition suitable then the patent is surrendered.
  • Right before sealing: Section 24 says that the patent is sealed from the date of notification for acceptance to the date of acceptance of the notification.
  • Right to apply for the patent of addition: This right has been expressed in sections 54 and 56 of the act. This right allows the Patentee to make modifications or changes in the existing invention and the acceptance notification is also granted.
  • Right to make convention application: A Patentee can apply for the protection of his Patent in other countries.
  • Right in case of infringement: Whenever the rights of Patentee are infringed, Patentee has the right to move to the district court of competent jurisdiction.
  • Right to be issued for the duplicate patent: In case of theft or damage of the original patent, the Patentee has the right to apply to the controller for the duplicate patent.
  • Right to be supplied copies and certificates: this right allows the Patentee to be issued with copies of the patent which are certified, after the payment of the fee by the Patentee.

When there are rights, there are certain limitations also. The Patent Act also provides certain limitations on the exercise of the rights of the Patentee. The limitations are:

  • Government use of Patent: Section 100 of the act states that at any time after the application for a patent had been filed or the patent has been granted, the central government has the right to use the invention for government purposes.
  • Compulsory licenses
  • Use of inventions for defence purposes
  • Restored Patents 

The rights of the Patentee has been clearly enshrined under the Patent Act,1970, then also there are many cases of infringement of the patent. The infringement of rights of the Patentee can be solved only when the laws are rightly placed and the laws changes with the time according to the changing situations. The patentee has the exclusive rights to move to the court in case of infringement of their patent rights. But the rights of the Patentee should be exercised within the prescribed limits of the law. 

Sources:

http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps48.html

Endnotes:

  1. The invention is something that has never been made before or the process of creating something that has never been made before
  2. Cambridge dictionary
  3. A person who does the invention
  4. The patent Act, 1970, Intellectual Property Rights
  5.  The patent Act, 1970, Intellectual Property Rights, pp 39
  6. The patent Act, 1970, Intellectual Property Rights, pp 40,41
  7. The Controller General (CG), is one who supervises the administration of the Patents Act, the Designs Act, and the Trade Marks Act, also advises the Government on matters relating to these subjects.

Aarushi Agarwal - ILS Law College

Arushi Agrawal

Author

Arushi hails from ILS Law College, Pune and she spends most of her time researching on new topics, art and craft, painting. Her Interest area lies in criminal and family law. For any clarifications, feedback, and advice, you can reach her at agrawalarushi463@gmail.com

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