In the innovation economy, invention determines the future of the nation. The development in the field of science and technology plays a vital role in today's economic world. More inventions bring more economic development to the country. Patent rights not only grant rights to an inventor but also the inventor gets a share of 50% from licensing the patent. India should encourage the inventor to make more inventions and to achieve the developed position in the world's economy.

Introduction:
In the context, we have to discuss one of the prominent rights of intellectual property. In today's condition, intellectual resources play an important role in the development of both personal and country in general. The major task of the government in any country is to find new resources for its economic growth. The invention is essential but protection of that invention is the predominant one.

To protect that invention “patent rights” was introduced under patent act 1970 along with the patent rules 1972. The word 'patent' derives from Latin word 'patere' which means 'to open'. Patent is a legal right exclusively granted to the inventor to protect and prevent the invention from misusing it. Every person has the right to get a patent for its invention. Patent is given to that invention which is an unknown product, new process of making or new way of using.

The invention which fulfills all the conditions under section 47 of patent act should be recognized as patentable invention. Patent is valid for only 20 years. After completion of 20 years, the patent expired and it was placed for public use. If anyone uses the invention, first they get a license from the inventor, otherwise who uses that invention without getting a license is punishable. In this case inventors have the right to sue and get compensation, in this innovative world, achievement in the field of science and technology becomes a decisive factor of economic growth. Those intellectual resources are protected by the intellectual property rights.

Patent and patent law

Patent is a legal document granted by the national government to protect an invention and give the exclusive right to the inventor to make, sell, lease, and give license to an invention. Parent is granted only for the unique thing i.e. inventive steps must be included with the invention. Those inventions are granted under section 2(1) (m) of the India patent act 1970. Patent act 1970 replaced the patent law and the patent and designs act. It was amended in 2005.

Every single person can get a patent for his or her invention. Even two or more people jointly inverts a thing they are also capable of getting a patent for. Patent is a mandatory one. If one manufactures a thing, without getting a patent, no security is given to their manufacturing product from being copied or reproduced.

Here the inventor couldn't bring an action against the infringement. The aim of the patent system is to encourage the inventor for his technology by awarding him special rights to get benefits (profits) from their invention. Patent is valid for 20 years, and after that it is placed in the public domain. To keep the patent in force, renewal fees are paid for every year until the completion of 20 years.

What is patentable?

Patent isn't easily approved by the patent office. To qualify for a patent, the invention must fulfill the three basis requirements.

1. Novelty (quality of being new and original) means no one in the world is so far aware of the invention.
2. Utility (being useful to mankind or profitable) means invention is capable of industrial application.
3. Inventive step (should not be obvious) means significant improvement to the statue, use or process of existing technology. An invention which fulfills the conditions above mentioned is recognized as a patentable invention under section 47 of the patent act.

Patent for inventions not for discoveries:

Some inventions which can't be patentable even if they pass three requirements are called non patentable inventions. Patentability differs from country to country. Under Indian patent act all the invention which comes under the section 3 and 4 cannot be patentable in India. Inventions which are frivolous, obvious, contrary to law, morality, contrary to well established natural law, injurious to public health, method of agriculture and horticulture, invention relating to atomic energy, duplication of known devices, discovery of scientific principles etc are not patentable in India. Patent is only a granted for invention, not for discoveries. Anyone discovering a new thing occurring in nature is usually called a discovery not an invention.

Purpose of getting patent:

The ultimate aim of getting a patent is to enjoy exclusively right over the invention. Patent is essential for commercial purpose and without getting a patent, the invention didn't have security, recognition and being cheated by others who copied the invention. After the invention has been made, the inventor decides whether to get a patent or not. Mostly go with the decision that not to file a patent application and the invention is protected by the way of confidentiality. It is not suitable for the commercial purpose of the invention. Patents are tradable forms of protection.

License of patent:

It means the owner grants permission to a third party or company to make use of his or her invention. This agreement is based on certain terms and conditions such as defined purpose, territory and period for the use of an invention. Licensors may grant a license to a licensee for many reasons. To license a patent, the patent holder receives the “royalty” payments in return.

Patent filing process:

The initial stage of getting a patent is to documentation of the invention. The important criteria are to determine the novelty. Then the document is filed at the Indian patent office (IPO) along with prescribed forms. If an inventor wants to apply for a patent in a foreign country, first he should get foreign filing permission from the IPO. In case failure to seek foreign filing permission, it results in criminal liability and imprisonment for 2 years and a fine or both.

After 18 months from the date of application, the application is published on the official website. Anyone who opposes the application is called 'pre-grant opposition'. After publication, examination of application takes place within 48 months from the date of priority. The controller can decide whether to grant a patent or not. In case no issue with the above mentioned process controller can grant the patent. The opposition rose within the one year of grant of patent it is called post-grant opposition.

Maintainability of secrecy by IPO:

IPO should maintain the secrecy of all patent applications for 18 months from the date of application. After the completion of all the process such as publication, examination, pre-grant opposition, post-grant opposition. If the applicant has a doubt regarding the secrecy maintainability of the controller, he or she can sue the controller.

Process of renewal of patent:
Renewal fees are payable to keep a patent in force. For every year expect the first two year of grant of patent. Patent may lapse when the patent holder fails to pay the renewal fee. At that time patent holders couldn't manufacture and sell. But renew it by paying all the prescribed fees, otherwise the patent is cancelled. According to section 53, the validity of the patent is for 20 years. Renewal fee is payable until the completion of 20 years.

Rights of patentee:

Patent is the monopoly right given to the inventor under section 48 of the indian patent act.
The patent holder has a power of authority over his or her invention:

1. Only an inventor has the right to sell, mortgage or give a license to his invention.
2. The inventor has the right to sue against infringement.
3. The inventor has the right to surrender his invention for the public domain before the completion of 20 years.

Most stunning example of the rights of patentee was Dr. Jonassalk who invented the polio vaccine, and he denied his patent rights. He placed the polio vaccine for the public domain, and he lost 7 crore dollars at that time. If he gets a patent for his vaccine, he becomes a billionaire. But he couldn't do it, and so that thousands of poor children are cured by the polio vaccine. Definitely we must praise him for his generosity.

Patent infringement and remedies:

Patent infringement means unauthorized use of a patented invention by a third party, or, in other words, the usage of a patented invention without getting a license from the patent holder. Section 104 to 144 of the Indian patent act 1970 provides guidelines for the infringement of patent. The limitation period to file a suit for patent infringement for 3 years from the date of infringement stated under Indian limitation act. The patent holder can file a suit in district court or high court.

The patentee, assignee, co-owner have the right to bring a suit against patent infringement. Direct infringement and indirect infringement are the two types of patent infringement. In a patent infringement case, counterclaim is filed by the defendant. Both the main suit and counter claim are heard at the same time. If the patentee establishes the prima facie case, irreparable injury and balance of convenience, in that case, the court issues an injunction order and give suitable relief under section 106 of the Indian patent act.

In early days, India was struggling to protect the rights of patent holders. To safeguard the patentee Anton Piller Order and Mareva Injunction are implemented in intellectual property cases. Anton piller order is issued by the court in cases where the defendant may destroy the evidence.

It allows the plaintiff the right to search the suspect premises of the defendant and seizure of evidence without prior notice stated under ordinance 39 of the civil procedure code, 1908. Maria injunction can be granted to freeze the assets to the defendant, and the document is properly submitted to the court under order 39 rules 1 of civil procedure code.

In Bajaj Auto Ltd VS TVS Motor Co Ltd[1], the plaintiff first got patent rights. After that, the defendant introduced the same product with a small change in name. Defendant manufactures a product and sells it. Plaintiff files a suit against the defendant. The madras high court held that it had different technology, but it ordered the defendant not to manufacture and sell it until the ending of the court proceedings. Then the plaintiff appealed the case, and the Supreme Court also passed the same order. Here “anton piller order” is given to the plaintiff to search the defendant premises.

Is that defense equipment is patentable:

The inventor who inverts the equipment related to defense may not receive a patent. If the invention is used by the central government, the rights vested in the inventor's name, and the government could give a suitable compensation.

Advantages and disadvantages of patent:

1. The Inventor is the sole authority to do anything regarding his or her invention. Patent holder has a complete monopoly and raises the capital for business.
2. To get a patent is a long process; typically it takes (3 to 4 years). Not all the patents have financial value.

Conclusion:
Patent is essential to protect the rights of the inventor. In order to protect the rights of the intellectual property holder, various types of rights are given and to solve the intellectual property disputes, alternative dispute resolution (ADR) is also established. Patent protects the invention and boosting the inventor to invert many things.

Many developed countries use the intellectual resource as an important tool to develop their country's economy. By the way, India tends to increase inventions, and it gives a way to become developed nation.

End-Notes:

1. Bajaj Auto Limited Vs Motor Company Limited JT, 2009 (12) SC 103

Written By:

1. M. Vanmathi, II year of B.A.,LL.B. - The Central Law College Salem
   Ph no: 6383081986, Email: [email protected]
2. B. Sandeep Harish, II year of B.A.,LL.B. - The Central Law College Salem
   Ph no: 8110067837, Email: [email protected]
   
   

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