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Patent Law

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Patent Law – The word patent is derived from the Latin word ‘pattier’ which means to be open, to reveal. The word patent is a shortened form of ‘letters patent’ which means a written or printed deed by a sovereign power conferring upon an inventor certain rights by way of an exclusive right to make, use and sell his invention for a limited period. Thus a patent is a state grant granted as a right to the inventor to use his invention for a specified period of time.

The term ‘patent’ has been defined under section 2(1)(m) of the Patents Act, 1970 – ‘patent’ means a patent granted for an invention under this Act. (substituted by the Patent Amendment Act, 2005)

As per section 2(1) p of the Act, “patentee” means a person who is for the time being entered in the register as a grantee. Thus the one to whom a patent is granted is called a patentee.

Patent confers substantive rights to the inventor. It ensures a valuable economic right to the invention which he can enforce by using himself or by transferring a privilege in this behalf to others. Patent provides protection to the inventor from competition. Patent is a source of pecuniary benefit to the inventor. During the term of the patent, the exclusive right held by the patentee to be used by someone else without his consent or license is considered to be infringing against whom a proceeding(remedy) can be instituted.

Object of Patent

 A patent is an intellectual property right. Patent is granted keeping in view the following objectives:

  •  To encourage research and pursue inventive tendencies;
  •  To reward and honor the inventor for the new and useful invention by him;
  •  To protect inventors by granting them a monopoly to make commercial use of their inventions;
  •  Motivating industries to speed up the process of R&D;
  • To maintain the pace of invention while paving the way for inventions;
  •  To increase the productive capacity of the nation qualitatively and quantitatively by using new methods in the production of goods or services;
  • To aid the industrial progress of the nation, and
  •  To bring about qualitative improvement in the standard of living of the people,

Procedure for obtaining a patent –

Without the invention being patented, the invention does not take the form of a property right. The following procedure is required to be followed for obtaining a patent:

  •  (1) Submission of Application Form (Section 6 – 11)
  • (2) The application must pass through the stages of publication and examination (Section 11A – 21)
  • (3) Opposing the grant of a patent to the applicant
  • (4) Hearing of the parties
  • (5) Grant of Patent

(1) Submission of application – A list of conditions is given in section 6 to 11 of the Act. These conditions must be satisfied before the submission of the application form.

 Section 6 refers to a person who is authorized to make an application—

(a) The person who made the original and first invention

(b) the person assigned the person who made the original and first discoveries.

(c) the legal representative of a deceased person who was authorized to apply for a patent immediately before his death.

 Such an application can be made by that person singly or jointly.

Form of application (section 7) –

(1) Every application for a patent shall be for one invention only and shall be made in the prescribed form and submitted to the Patent Office.

(1A) Every international application for a patent under a Patent Cooperation Treaty shall be submitted in the name of India,It shall be deemed to be an application under this Act if the corresponding application is also presented to the Controller in India.

(1B) the date of submission of the application referred to in sub-section (1A) and its full specification statement processed by the Patent Office, shall be the date of submission of an international application accepted under the Patent Co-Operation Treaty as a designated office or as an elected office.

(2) Where proof of right to apply for an invention may be produced after the application has been submitted by assignment of the right to apply for a patent, within such period as may be specified.

(3) Every application under this section shall state that the applicant is in possession of the invention and the name of the person claiming to be the original and first investigator, and where the person so claiming is not the applicant, or is not one of the applicants, the application shall contain a declaration that the applicant believes the person so named to be the genuine and first investigator.

(4) Every application (not being a Convention application or an application filed under a Patent Co-operative Treaty designated in India which is designated in India) shall be accompanied by an interim or a complete specification.

Publication and Testing of Application-

 The Controller of Patents may also not permit the particulars of an application to be made public for a specified period during which he is at liberty to ascertain, in consultation with the Central Government, whether the invention in question is such as to be kept confidential. After the expiry of this period, the application may be allowed to be made public by the Control only at the request of the applicant.

From the date of publication to the date of the grant of the patent, the applicant shall have all the rights and privileges which would have been in the case of the grant of the patent on the date of publication. Provided that unless the actual grant of the patent is in favor of the applicant, a suit for infringement cannot be instituted by the applicant against any person.

The Patent Amendment Act, 2005 repealed section 5 which described inventions where only manufacturing methods or processes were patentable. Section 11(a)(7) provides that In respect of applications under section 5(2) made before the 1st day of January, 2005, which are for the time being under the consideration of the Controller of Patents, the rights to the patent holder shall be from the date of grant of the patent instead of the publication of the application. .

Transfer of Patent Rights –

A patent is a transferable property that the patentee is authorized to assign or license for consideration of his patent rights. Patent rights can be transferred in the following ways:

  • Assignment
  • License
  • Transmission of Patent by oration of Law
  • Assignment  – means the transfer of title by a party to its right or property. Like an intangible asset, a patent can be transferred by agreement. The person the patentee himself or his agent, who assigns the patent rights, is called the assignement and the person in whose favor the patent rights are assigned is called the assignee. If the assignee dies, his legal representative is called the ‘assignee’.
  • License- Patentee can grant his rights on license by contract. The license may be granted to all or some of the rights. Temporary possession is granted by licence or rights for some area. Only then the person has the right of license. The license cannot be transferred to anyone else as it is not an assignee.

Type of License

The licenses are of the following types-

  • Voluntary license
  • Statutory license
  • exclusive license
  • Limited license
  • express and implied license

(3) Transfer of patent by nature of law- When the patentee dies or becomes insolvent or, in the case of a company, if it is dissolved, the patentee’s interest in the patent passes to his legal representative, or On the dissolution of the company, the transfer takes place in the same way as in the case of other assets. If the reasonable requirements of the public are not met, the patent can be acquired by the government under the Act.

Patent infringement and defense – Patent right is a privilege which is obtained by the state to the person who first invents or manufactures a new product. The inventor of such new product gets a monopoly on that article. The same patentee can use and sell them. A breach of privilege arising from a patent right occurs when a person makes, uses what sells an invention within a specified period of time without a license being expressly authorized by its owner. It is considered infringing in the following cases-

  • Copying the invention.
  • Immaterial variation in invention
  • Mechanical equivalent
  • Explore essential features\

All of the above functions often overlap with each other during the infringement of a product or process patent. Where the infringing makes a slight improvement to the patented product or process but actually embodies the material characteristics of the patented invention, a similar copy or immaterial variation of the invention amounts to infringement.

Whether any infringement took place or not has to be decided individually in each case. Whether or not there has been any infringement in a case or the matter is ascertained only from the facts of that case.

Remedy-

When the patent right of the patentee is infringed then it is protected only by judicial intervention. The plaintiff is entitled to get damages and to proceed for injunction for the infringement of his right. Further, the plaintiff is entitled to damages for actual pecuniary loss caused as a result of such contravention. The Court may also issue a suit injunction, but in doing so, the Court must see whether all that is done has affected the whole or the whole of the invention of the plaintiff. If a person has got his patent registered with the office of the Controller, he has the monopoly of that use. The patent may seek a temporary injunction and a permanent injunction, in addition to seeking damages or gains made by the other party. Even the goods finished by the infringing person may have to give relief to destroy.

In case of infringement of the patent of the patentee, the plaintiff can file a suit in the civil court to get relief. Such a suit under section 104 can be presented in the court of the District Judge. Such suit should be presented within a period of 3 years from the date of infringement. It is not necessary for the plaintiff to give any notice to the defendant before presenting the suit. Under section 108 of the Act, the court can grant an injunction to the plaintiff subject to certain conditions. It can also provide compensation to the plaintiff. The court may also order the defendant to destroy the goods or to provide it to the plaintiff.

Provided that Section 112 of the Act deals with the restrictions imposed by the Act on the power of the Court. Under this section, “the court shall not grant an injunction to the plaintiff if the defendant is prepared to license the patented article subject to such conditions as the controller may decide.”

But that patent should not be foreign and the amount shall not exceed twice the amount of the license if the license had been taken before the infringement.

According to section 105 of the Patents Act, 1970, a suit may be filed by any person before the Court for a declaration to the effect that the use of any process by him or the manufacture, use or sale of any article by him is a patent subject to a patent. or infringes any claim made against the holder of the exclusive licence. Notwithstanding that no disclaimer to the contrary has been made by the patent or the licensee, the plaintiff is required to prove—

(a) that the plaintiff has applied for acknowledgment in writing to the patent or exclusive licensee and has given to him in writing all the particulars of the process or article in question, and

(b) that the patentee or the exclusive licensee has refused or neglected to grant such approval.

 The expenses of all the parties to the suit for such declaration are ordinarily paid by the plaintiff. In such a suit the validity of the claim of patent specification is not in question. A suit for declaration under section 105 can be filed at any time after the publication of the granted patent.

Patent

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