This article is written by MS SHAHEEN HIRANI a 4th year student of Keshav Memorial College of Law.
For every invention made by an inventor, the use of it, the sale of it is completely the discretion of inventor and to give it a governmental objective it is licensed for a certain period of time and thus under Intellectual Property it is referred as Patent.
PATENT-Patent is derived from a Latin word named “PATENTE” that means “to open”. It is a legal document issued by the government to the inventor granting the rights to him to prevent others from making, using or selling that invention for a certain period of time.
EVOLUTION OF PATENT INTERNATIONALLY
The first recorded patent was granted to John of Utynam. In 1449 he was awarded with a 20 year monopoly for a glass making process which was a very new concept in England and not known previously.
In USA, the first patent was issued to Samuel Hopkins in 1790 for a process of making a potash which is an ingredient used in fertilizer.
EVOLUTION OF PATENT IN INDIA
In India, first patent law was passed in 1856. It was an act for granting exclusive rights to inventors. This act was replaced quickly by Act no IX of 1857 on the ground that it was passed without obtaining the previous sanction of Her Majesty. In the due time many replacements were made which eventually concluded in making the Patent bill introduced by the Government of India, resulting as The Patents Act 1970. Therefore this act was further amended thrice namely-
.Act no 17 of 1999
.Act no 38 of 2002
.Act no 15 of 2005
The object of patent law is to encourage scientific research, new technology and industrial progress. The fundamental process is that a patent is granted only for an invention which must be new and useful. It must have novelty and utility. It is essential for the validity of a patent that it must be the inventor’s own discovery as opposed to mere verification of what was already known before the date of patent.
A case law in reference to the effect of grant of patent is-
.RAJ PARKASH VS MANGAT RAM CHOUDHARY AND ODRS
The effect of grant of patent is quid pro quo. Quid is the knowledge disclosed to the public and quo is the monopoly granted for the term of patent. Section 12 of the patent and Designs act 1911, sets out that a patent once granted confers on the patentee the exclusive privilege of making, selling and using the invention throughout India and of authorising others so to do. This is quo. The quid is compliance with the various provisions resulting in the grant of patent.
OBJECTIVES OF PATENT
The object of patent law is to encourage scientific research, modern technology and industrial progress. Patent protection is designed to encourage inventors and disclosure of details of new inventions. However the objectives of patents are classified as:
.To encourage inventor- If an individual puts efforts in inventing something it can be patented, he has provision that stops other from copying through patent.
.To protect inventor’s interest- protecting inventor interest allows the law to protect the goodwill and financial gain of inventor.
.Encourage research and development- Inventor gets recognition for his work and at the same time it is protected, and thus he gets motivated and that eventually leads to technical and financial growth of society.
.To ensure fair trade practices- Providing protection and monopoly rights law indirectly stimulates fair trade practices.
PRINCIPLES OF PATENT
There are several laws and rules that govern patents. Its purpose is to motivate people to create inventions by offering them a financial incentive to do so.
A individual can sue for its patent infringement in courts if someone attempts to obtain profit from their patented idea without the inventor’s protection.
NOVELTY
A patent’s first requirement is that it must be ‘novel’. It means that the invention have never been existed even. If two people create same invention, the grant will be given to the one who made it first, even if other inventor filed for patent protection first.
USEFULNESS
The invention must be useful to qualify for patent protection. The usefulness requirement explains why the theory of relatively and theory of evolution cannot be patented.
INGENUITY
Invention being novel and useful is not the only necessity to get patented unless it is ingenious. The innovation that define invention would not be obvious to a skilled technician working in the field to which invention belongs.
SCOPE OF PROTECTION
Patent law allows a process to be patented as long as it is novel, useful and ingenious. Patent protection prevents anyone from making, selling, offering your invention.
THE TRADE-OFF
The government offers temporary monopoly on the right to profit from the invention. In exchange one must gives his/her technology to public after the monopoly expires. Patent application should also include details and specification and all the details publicly available.
TYPES OF PATENT
Patent is yet again classified in 3 specifications, which can be explained as-
.UTILITY PATENT- utility patent or patents for inventions, are most common type of patent for issuing legal protection to people who invent useful and new article. It last for 20 years from date of filing to maintenance fee paid.
.DESIGN PATENT- design patent for original, new and ornamental designs for manufactured products. It protects the design or look of something. It last for 15 years.
.PLANT PATENT- plant patent go to anyone who produces, discovers and invents a new kind of plant capable of reproduction. These patent are granted for 20 years.
INFRINGEMENT OF PATENT
If a Patentee rights over his patent is violated it results in infringement of patent. The patentee has a right to take a legal action. Its not inscribed what constitutes as infringement in patent act 1970, but it could be anything as violation and misuse.
An action for an infringement must be brought as suit in any district court or high court.
Case laws in relation to patents are:
.BISWANATH PRASAD RADHEY SHYAM VS HINDUSTAN METAL INDUSTRIES
Here the supreme court observed that under section 13(4) of patents act 1970, the validity of a patent is not guaranteed and it can be challenged. It explained about the concepts of novelty and held that a patented invention maybe combination of different matters already known. Patents are not granted to medicines or drugs and certain chemicals.
.CLAY VS ALLCOCK AND CO LTD, 1906
In this case it was observed that it is, a part of the duty of a patentee to tell the public of his claim taken with the specifications and drawings, what he claims as his own and what, therefore the opposite party must not do without infringing the patent. In different word he “must mark out with adequate distinctiveness. The boundary of the territory that he claims to be exclusively of his own”.
One of the main function of patent system is to foster technological innovation by providing an incentive for research and development. It also works to disseminate technical information and promote technological transfer. Thus patents are the licence granted to the inventor. Every intellectual property ultimately protects, markets the invention.
REFERNCES
1.DR G.B.REDDY- INTELLECTUAL PROPERTY RIGHTS AND LAWS
2.wipo.int
3.wikipedia.org
4.ipindia.gov.in
5.upcounsel.com
6.vakil.search.com
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