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Introduction
A Patent holder enjoys a set of exclusive rights given as an
incentive for the investment in innovative activities and for the
dissemination of knowledge to public .However these rights are not
perpetual and can be revoked in exceptional circumstances o balance
the interest of the patent holders with those of the others; there are
various exceptions and limitations to these rights .Such exceptions are
experimental or research use ; use on foreign vessels ; obtaining
regulatory approval from authorities ; exhaustion of patent rights and
parallel imports; compulsory licencing and use or acquisition of
inventions by governments .even though there are exceptions and
limitations ,yet the term to hold a patent remain unaltered .
Thus a Patent is a set of exclusive rights granted by a state to
an inventor or his assignee for a fixed period of time in exchange for
the disclosure of the invention. It refers to a grant of some privilege,
property, or authority made by a government or the sovereign of the
country to one or more individuals. The instrument by which it made
is known as Patent. An invention is the creation of intellect applied to
capital and labour to produce something new and useful. Such
creation becomes the exclusive property of the inventor on the grant of
patent.
RIGHTS OF PATENTEE
A patent is a statutory grant conferring certain monopoly rights
on the grantee for a defined period, subject to certain conditions. In
some respect it may be considered as a species of property. A patent
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grant gives the patentee the exclusive right to make or use the
patented article or use the patented process. As a consequence flowing
from this he can prevent all others from making or using the patented
article or using the patented process.
A patent monopoly not only entitles the holder to exploit the
invention without competition during the period of patent protection;
it also enables him to enter the market, on the expiry of the monopoly
in a strong position. A patentee has also the power to assign the
patent, grant licences under, or otherwise deal with it for any
consideration. These rights created by statute are circumscribed by
various conditions and limitations.
The right of a patentee is considered as a chose in action. In
Edwards v. Picard, Vaughan Williams, L.J. observed: Now what is
the right of the patentee? It is a chose in action created by the exercise
of Royal prerogative, and entirely distinct from the right of property in
a chattel created under it. Again, Buckley, L.J. observed: The legal
qualities of a patent are, not that it confers upon the patentee a right
to manufacture, for that he could do without a patent, but that it gives
him monopoly in the manufacture. It creates in him a right of action
to prevent anyone else manufacturing. It creates in him a right to
bring an action for infringement with resultant remedy by way of
injunction, or damages or both. This is a legal right. The right of a
patentee to the exclusive use of the patented invention for the period
of its protection under the Act is a right to property.
There is no exclusive right similar to that of a patent in a secret
formula or process not patented under the Act. When a person has
discovered a valuable invention and has not patented it, anyone who
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using, offering for sale, selling, or importing for these purposes that
product;
(b) where the subject matter of a patent is a process, to prevent
third parties not having the owners consent from the act of using the
process, and from the acts of: using, offering for sale, selling, or
importing for these purposes at least the product obtained directly by
that process.
2. Patent owners shall also have the right to assign, or transfer by
succession, the patent and to conclude licensing contracts.
Section 48 of the Patent Act, 1970 which embodies Article 28 above,
provides the follows exclusive rights to the patentees:
Right to use and exercise the patent
Section 48 confers on the patentee the exclusive right to make,
use, exercise, sell or distribute the patented article or substance in
India, or to use or exercise the methods or process if the patent is for
a Process. This right can be exercised either by the patentee himself
or by his agents or licensees
The patent is granted in the form prescribed under s 46(1),
which reiterates the exclusive right of the patentee to use the patent.
Where a patent has lapsed due to non-payment of renewal fee, the
patentee may have the patent restored on following the procedure laid
down under ss. 60 and 61.
A patentee has power to assign, grant licences under, or
otherwise deal with the patent for any consideration.If he is a co-
owner of the patent, he can assign any share of the patent or grant
licences to others to use the patent only with the consent of the
coproprietors or under the directions of the Controller.
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but also deny the few who have access to patented products their right
to enjoy them
From the above it is clear that it is societys best interest that
genuine innovations should be protected and rewarded without stifling
further innovation. The best illustration of how a patent benefits the
public by encouraging disclosure in return for a period of exclusivity is
the plain-paper copier (the Xerox machine). Before the invention of
that copier, copies had to be made using expensive and messy
systems like photography, heat-sensitive paper, or mimeographs and
ditto machines. That changed when a patent attorney came up with
an electrostatic copying method. Because the patent attorney was the
first to invent the technique, he received a patent giving him the
exclusive right to practice the invention for 17 years (under the law at
that time).
By the time the patent expired, Xerox was an established company,
and companies like IBM and Canon joined Xerox in building and
marketing plain-paper copiers.
Benefits conferred upon the government:
Intellectual property is based on liberal, democratic principles.
Any person, exercising mental effort may claim it and no political
system dare destroy it. Shri Kamal Nath, the Union Minsiter for
Commerce and Industry has observed:
Intellectual property is the foundation of a knowledge based economy
and is becoming increasingly important not only for creation of wealth,
but for providing employment and improved standard of living for the
masses.
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Thus, it clear that the benefits of the patent system are not restricted
to the inventors and consumers alone. The government too is a
considerable stakeholder in patent system, being a key roleplayer in
the patent policy.
One of the reasons for the tremendous and rapid advance in
industrial power in the United States from the 19th century was the
liberal patent laws, the number of patens exceeding the million mark
in 1911 itself. As of today it is estimated that the US and EU together
hold 97% of all patents worldwide, and multinational corporations
account for 90% of all product and technology patents. The purpose of
an invention is to protect and encourage fair competition in the field of
technology so as to transform inventions or creations into real and
productive forces as quickly as possible. A countrys market economy
is dependant on the successful working of its patent system.
Patents in India and rights of patentee
Patents have a rich and varied history in India. As India was
colonized by the British, the developments in patent law in England
were generally mirrored by corresponding developments in Indian law.
Law relating to patentable inventions in Britain and India is
substantially the same. The history of the Indian Patent system can be
traced to 1859, when Act VI of 1859 on protection of inventions based
came to be enacted. The Act conferred certain exclusive privileges to
inventors of new manufacturers for a period of 14 years.
Subsequently, the British rulers enacted the Patents and Designs
Protection Act, 1888 which was repealed by the Indian Patent and
Designs Act, 1911 with the objective of saving the interests of
inventors. However, on account of substantial changes in political and
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Section 84(1), Patents Act, 1970. It had earlier approached Bayer with
a request for a voluntary license proposing to sell the drug at a greatly
reduced price, which Bayer did not allow. The Controller found that all
the three conditions71 required for the grant of compulsory license
were fulfilled and that this case merited the award of compulsory
license to Natco. On appeal, the IPAB held that Bayer did not meet the
reasonable requirement of the public (as only 2% patients are eligible
for the same) and that the price of the drug (Rs. 2.8 lakhs per month)
was not reasonably affordable in India when the purchasing power of
the public is taken into consideration. This was the first case in which
a request under Section 84 of the Indian Patent Act, 1970 had been
made, seeking the grant of compulsory license.
Since the Bayer-Natco decision, there have been two more
instances where Compulsory Licenses have been applied for. In the
first instance, the Health Ministry applied to the Department of
Industrial Policy and Promotion for the grant of Compulsory License
for cancer drug Trastuzumab, which was marketed in India as
Herceptin by Genentech and Herclon by Roche. The request was made
under Section 92 of the Patents Act, 1970, which allows the
Government to file for a license in case of national emergency. This
was on the ground that the drug was not affordable. However, the
DIPP rejected this request as it found that the requirements for grant
of compulsory license under Section 92 of the Indian Patent Act, 1970
was not satisfied
A request was also made by Indian generic drug manufacturer,
BDR Pharmaceutical with respect to cancer drug Dacatinib, marketed
by Bristol Myers Squibb as Sprycel under Section 84 of the Indian
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Similar provisions are seen when the government acquires the patent.
It is clear from the above that the Act not only recognizes the right of
the patentee in securing a reasonable advantage from the patented
product but also considers remuneration to the patentee in case
compulsory licenses are granted. Generally it is seen that it has been
a practice of all nations that whenever a compulsory license have been
granted, some amount of compensation has always been paid to the
patentee. The Supreme Court of Canada, for instance has held that
the duty of the Commissioner to fix reasonable compensation for the
Government use of a patent vests in the patentee a legal right and a
petition lies in the Court to enforce this right.
Thus it can be seen that there is an equanimity maintained
through the patent system. Whenever the monopoly rights conferred
upon the patentee are usurped, care is taken to ensure that the rights
of the patentee are not unfairly prejudiced in addition compensation
is paid to the patentee for such infringement of his rights.
The Act also contains general principles applicable to the
working of all patented inventions. It is provided that in exercising
powers concerning grant of compulsory licences, regard should inter
alia be had to encourage innovations and to secure that inventions are
worked in India on a commercial scale, and to the fullest extent
reasonably practicable without undue delay; and not to encourage a
patentee to merely import the patented article, but to see that patent
rights contribute to technological innovation, and to transfer and to
disseminate technology for the mutual advantage of producers and
users of technological knowledge in a manner conducive to social and
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Conclusion
The ultimate goal of any intellectual property system is the
advancement of science and technology as a means of securing overall
social and economic development. By conferring exclusive rights on
inventors, the true goals of any intellectual property system are
actually the advancement of science and technology. It is expected
that if additional rights are conferred upon inventors, it would induce
further inventions, enabling giant strides in the development of
technology, ultimately benefiting society.
Thus it can be seen from the above that the intellectual property
law by protecting the rights of an inventor in his invention actually
ensures the progress and growth of science and technology as a
means of securing economic and social development.
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BIBILIOGRAPHY
Books
Websites
i. www.legalserviceindia.com
ii. https://en.wikipedia.org
iii. www.ip-watch.org
iv. www.nishithdesai.com
v. scholar.google.co.in
vi. www.ptlb.in
vii. papers.ssrn.com
viii. www.accu.or.jp
ix. www. nujslawreview.org
x. www.lawyersclubindia.com
xi. www.cis-india.org
xii. indiatoday.intoday.in
xiii. ir.inflibnet.ac.in