Written by– Satendra Kumar Maurya Student of Dr. Ram Manohar Lohiya National Law University, Lucknow
A patent is an exclusive right granted for an invention of any technical instrument or vaccine or anything which is usable for human being that is not invent before it, which is a product or a process that provides, in general, a new way of doing something, or offers a new solution to a problem. To get a patent right to anyone, technical information about the invention must be disclosed to the public in a patent application. A patent is a right granted to an inventor by the government of the country that permits the inventor to exclude others from making, selling or using the invention for a period of twenty year. The patent system is designed to encourage inventions that are unique and useful to human being. Congress was given the power to grant patents in the Constitution, and federal statutes and rules govern patents.
An inventor applying for the right of patent must prove that the invention is useful for human society. The invention must have some beneficial use for the society and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a right to patent. A useful invention may qualify for a utility patent only if it falls into any one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of one of these. A procedure is a method of treating material to produce a specific physical change in the character or quality of the material which is not made in any form, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people.
HOW TO APPLY FOR PATENT ROGHT: –
If a person invented any machine or any technical instrument which is new and usable for public at large then he may apply for patent right. This is not like copyright which automatically arises. The inventor must apply for patent right within one year of publicly or disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or his or her attorney, generally makes a preliminary patent search before applying for a patent right to determine if it is feasible to proceed with the application. The application and a fee are submitted to the U.S. Patent and Trademark Office, where it is reviewed by a patent examiner. If once permission is granted then government take another fee for publishing of invention to the public use.
Anyone can take patent right for maximum 20 year from the date of application and if inventor will not pay the maintenance fee then patent right end earlier.
After a patent right expired the invention become public property and anyone can use this.
In the case Novartis vs Union of India, Novartis filled an application to patent one of his drugs called Gleevec by covering it under the word invention mentioned in Section 3 of the Patents Act. The Supreme Court rejected their application after a 7year long battle by giving the following reasons – Firstly there was no invention of a new drug, as a mere discovery of an existing drug would not amount to invention that can grant patent. Secondly honourable Supreme Court held the view that under Indian Patent Act for grant of pharmaceutical patents apart from proving the traditional tests of novelty, inventive step and application, there is a new test of enhanced therapeutic efficacy for claims that cover incremental changes to existing drugs which also Novartis’s drug did not qualify. This case became a landmark judgment because the court looked beyond the technicalities and into the fact that the attempt of such companies to evergreen their patents and making them inaccessible at nominal rates
If an inventor thinks someone has used his or her patented invention without his or her permission, he or she may bring a suit against the patent infringer. Infringement of patent is violation of law and who will infringe it will be punished the court. If the court agrees, it may award the patent holder costs, attorney’s fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent of a person). An action for infringement can be time-consuming and costly, so infringement cases often are settled. The patentee may also request the administrative authority for patent right affairs to handle the matter, or institute legal proceedings in the people’s court, when an infringement appears.
RIGHT OF PATENTEES: –
The owner of the patent has got the right to manufacture use and sell the invention in India. If the item is of production then he has right to produce that thing by the method he is producing. The agent of the patent has this right. The owner of the patent also has the power to give permission of his invention to other person for manufacture or produce the same thing of which he has got the licence of patent provided that he should have the ability of manufacture of produce that thing. any entity or individual exploiting the right patent of another must conclude a written licensing contract with the patentee and pay the patentee a fee for the exploitation of its or his patent. The patentee shall not have the right to authorized any entity or individual other than that referred to in the contract to exploit the patent.
Patent is very important for the publicity of any invention because if a person invented any new thing which usable for society, he will not able to sell it until and unless he will be granted patent right for the same by the government of India. Patent also gives right to patentee that he can sue anyone who is manufacturing or selling the same thing within 20 year of application date.