This article has been written by MS SHAHEEN HIRANI ,a 4th year student of KESHAV MEMORIAL COLLEGE OF LAW.
Let’s begin this article by understanding from where the word PATENT has come into existence from and what is its general concept.
We all are aware about a very general but a perplexed word which is INTELLECTUAL PROPERTY(IP).This concept looks so simple but is a combination of several similar but varies with each other.Basically IP refers to creations of mind such as inventions,literary,artistic works;designs;symbols;names etc. and here is where the concept of patent begins only when they are protected by law.The above mentioned plethora of IP when is protected by law, that makes possible for the people to earn recognition or financial benefits from what they have invented and created.
Now let’s find out what actually Is ACQUISITION OF PATENT-it can be referred as the process or act of acquiring a property right for an invention by an inventor.Patent acquisition enables number of processes for smooth functioning by abiding to the agreement created among the two parties.
A case law is mentioned here under where we can understand the purpose,principle behind the patent law.
•KARNATAKA HIGH COURT IN NATURAL REMEDIES PVT LTD VS INDIAN HERBS RESEARCH AND SUPPLY CO.,
A patent is a right of monopoly for the exclusive use of invention.The core principle of patent system is its encouragement of improvements and invention.The idea behind it is to disclose the invention for the public good and interest of society.The inventor will thus receive the benefits and will be entitled to prevent others from performing his invention except by his license.
NEED FOR PATENT ACQUISITION
The need for patent acquisition is emphasised as it protect the intellectual property of the patent holder,ensures it profitability and also helps in marketing the innovation of the patent holder.several rights are vested to the patent holder few of them are mentioned below:
1.Patent holder is the sole owner of the property and he has the right to stop others from using the registered invention and can choose to permit the use of it by other person under agreed terms.
2.He can seek for damages when any other individual infringes the registered invention by bringing a legal action.
CONSTITUTIONALITY ON ACQUISITION OF PATENT
As the concept of IP is very vast so does the content under it must be having ,likewise for the patent to be constitutionally relavent with the laws of India, it is explained under THE PATENT ACT 1970 under SEC 102 which explains about Acquisition of invention and patent by central government.
The application of patent has certain procedures to be followed:
The applicant must in contact with patent and trademark office should find out whether the same or similar invention is registered or not.The invention must be distinguished and not just the improvement of a earlier invention to be patented.Accurate design process,clear records must be cross checks by the applicant to avoid any complications further.
While application the applicant must pay the given fee along with specific documents.
A formal oath or declaration is made by the inventor for confirming the authenticity,novelity of the innovation.
Once This formalities are made the application is reviewed thus resulting in the approval or denial and in some cases asked for modifications.
There is also another feature for the inventor which is PATENT PENDING while waiting for the approval and it can be summarised as-
Patent pending is a legal designation made to denote that a patent has been applied and is waiting for the approval.It serves as a notifying agent to several other inventors and industries precisely.
DURATION OF ACQUIRED PATENT
The patent once granted stays valid for 20 years from the patent application filing date for the utility patent.As it’s a limited amount of time an invention can be protected by patent,it helps in seeking benefits for a potential patent holder as soon as possible.
In situations when a patent holder is required to pay annual renewal fee and if he fails to pay the patent expires according to the fixed duration agreed upon or minimum of six months.
TYPES OF INVENTION THAT CAN BE PATENTED
There are many complexities in obtaining of patent to a particular invention but through research the following are granted namely
1.NOVEL INVENTION
A novel invention can be explained as an invention which never existed In the market earlier and people living had no knowledge about it. In contemporary times every other invention is considered new but it does have a long usage sone way or the another the only thing added is just the alterations to same old product,thus such inventions aren’t registered under the patented invention
2.ABIDING PUBLIC POLICY
The invention must abide by the public policy and not go against it ,it shouldn’t against the morality too as it could be a ground for the rejection by the patented registry.
3.CONSISTS INDUSTRIAL APPLICATION
The object that is made or the invention that is created must be for a use to the mankind,that could be in any field not restricting to anything particularly.
Therefore this are the major or core principles before registering a invention as a patent.
A case law related to novelty of a invention made-
•BISWANATH PRASAD RADHEY SHYAM VS HINDUSTAN METAL INDUSTRIES
Under the section 13(4) of patent act 1970,the validity of a patent is not guaranteed and the same can be challenged.The Supreme Court held that it is a mixed question of law and fact to decide about the novelty or subject matter.It also cleared that a patented invention may be a combination of different matters already known,but it must be something more than a mere workshop improvement.
One of the major leading case of patent is
•NOVARTIS VS UNION OF INDIA,2013
A landmark case concerning the granting of patent.Novartis had filed for a patent application of its crystalline form of ‘ImatinibMesylate’in 1998 according to TRIPS Agreement of The World Trade Organisation.However in India the patent filing process was allowed in 2005 after Indian allowed for product patent.various authority collectively rejected the application of Novartis as it failed to satisfy the requirements of novelty as per Indian Patent act 1970.
The appeallate tribunal rejected the application on the grounds that it was mere discovery of a new form of a known substance which did not result in the enhancement of the substance.After having timely rejections in 2009 it directly applied to the Supreme Court wit several contentions made by the parties ,the Supreme Court then said that the Novartis failed to meet the requirement of novelty.
Thus the decision given by a bench of the Supreme Court upheld the rejection of the patent application filed by Novartis for Glivec in 1998 before the Indian patent office.
CONCLUSION
The patent on any of the intellectual property is a huge benefit and also necessary in securing the invention and the inventor rights.Patent is an tool which also appreciates the hardwork,time,efforts and the research made by the inventor.and for several institutions rather than showcasing it ,it can also helps in generating the revenue.As we have seen in this contemporary time that several companies exist only for collecting royalties from patent they have licensed.So indeed patent and other IPS not only provide due recognition but also secure an inventor financially.
REFERENCES
1.DR.G.B.REDDY-INTELLECTUAL PROPERTY RIGHTS AND LAW
2.http:/ /indiankanoon.org/doc/173363827/
3.www.researchgate.net
4.www.legalservicesindia.com
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