A Study on the Limitation of Patent Rights

This article is written by Simran Kaur Bilkhu, Balaji Law College; Pune University dyring her internship with LeDroit India. This article elaborates on patents, the patent rights, the rights, the obligations to a patent holder and its limitations.

Introduction

A patent is a legal chronicle that defies the bearer with absolute rights to debar others from producing, selling, or distributing invention. Basically the enforcement of a patent ensures that the intellectual property rights of the inventor are sheltered and guarded. However there are a few primary legislations of patent laws that lay down three basic variables on the grounds of which patents are granted. The fact that the product should have a useful motive, it should be a narrative invention, and the invention thus made should be non-obvious.
There are unquestionable rights that a patent shall confer on its owner some absolute rights that are given under TRIPS agreement Article 28 which puts down the subject matter of the patent is a product , for to fend off third parties to not have the owner’s consent from the acts of making , using, benefaction for sale or importing for these purposes that product; with the subject matter of a patent is a process, with the same to prevent the third parties not having the owner’s consent from the act of using the process, and from the acts of using, offering for sale, or importing of these purposes at least of the product acquired by that procedure. There are limitations of these patent rights which will be analysed below

What is a patent?

A Patent is an absolute legal right permitted for inventing something brand new, or a process to make something, or offering a new scientific method or solution to a problem. According to patent law, the patent holder has the legal right to avert or hinder others from commercially making, using, distributing, importing, or selling the patented invention without the consent of the patent holder. And if anyone commits any act that infringes the patent, it amounts to patent infringement.
A patent is issued in India under the Indian Patent Act, 1970. According to Indian patent regulations, a patent can be issued only for a novel and practical innovation. It grants the patent holder unlimited rights to prevent or restrict other parties from creating, using, offering for sale, selling, or even importing the patented invention to consume, sell, or offer for sale without the approval of the patent owner until the patent expires. Such restrictions are enacted to prohibit third parties from commercially exploiting the patented technology. A patent can also be sought in India for the modification of an object or a manufacturing method.
No patent is awarded for the material itself in the case of medications, medicines, and specialised compounds, but a patent is issued for the technique of making such things. To obtain an assignment of a patent, the patent application must be true, and the patent will then be assigned to the inventor or the person who obtained the title from that inventor. Every patent in India is granted for a period of 20 years from the date the application was filed. However, under the Patent Cooperation Treaty (PCT), the life of a patent will be 20 years from the international date of filing specified by PCT for applications lodged during the national phase.

Indian Patent Act, 1970

The Patents Act 1970 was enacted on April 20, 1972, to replace the Indian Patent and Design Act 1911. It was introduced with the Patent Rules of 1972. It was based on the Ayyangar Committee’s recommendations. Patenting the process of developing medications, medicines, food, and chemicals was one of the recommendations. Patent provisions were updated once more, this time by extending patents to items in all areas of technology, including microbes, and clauses concerning exclusive market rights (EMR) were removed. This amendment to the 1970 Act was known as the Patents (Amendment) Act, 2005.
The Patents Act, 1970 (No.39 of 1970), as revised by the Patents (Amendment) Act, 2005, and the Patents Rules, 2003, control the patent system in India. The Patent Rules are updated on a regular basis to meet the needs of a changing environment, with the most recent revision being in 2016.

Barometer to Obtain a Patent in India

The three foundational strides for an invention to be patentable:

1. The first stage is to guarantee that the contrivance is novel, which means that it must not have life previously or at the time of creation.
2. Furthermore, the innovation must not be evident, i.e. it must be an improved version of the prior one. A simple change in technology will not result in the inventor obtaining the virtuous patent.
3. Finally, the innovation must be beneficial in a legitimate manner, which means that it must not be used in any unlawful work and must be valuable to the public rightly.
   And these criteria’s for an invention to be patentable in India are defined us 3and 4 of the Indian Patent Act, 1970.

Patent Rights and Obligations
Rights to a Patent Holder

1. Right to flaunt the patent: In India, the patent holder has the right to consume, use, control, sell, or distribute the patented topic or product. This exclusive right (Section 48 of the Patents Act 1970) can be exercised by the patent owner, his agent, or licensees, to whom he has granted such rights. However, these rights are only exercisable until the patent is registered.
2. Right to transfer rights and grant licences: Pursuant to Section 69(5) of the Patent Act, the patent owner has the option to transfer his rights, grant licences, or engage into an arrangement for compensation with another person. To make such an arrangement effective and lawful, a licence or agreement must be prepared and registered with the Controller of Patents. If the paperwork transferring a patent is not registered, it will not be accepted as proof of any person’s title, including the person to whom the right was properly transferred.
3. Right to surrender the patent: A patent holder has the right to relinquish his patent under Section 63 of the Patents Act. Before accepting surrender, a notification of surrender is sent to the individual whose name is recorded, while his objections are considered. The surrender application is also published in the official gazette so that interested parties can oppose it.
4. Right to bring an action for infringement: Above all other rights, the patent holder has the right, under Section 19 of the Act, to commence proceedings for infringement of the patent in the District Court with jurisdiction for trial.

Obligations to a Patent Holder

1. Obligation to disclose: Section 8 of the Patent Act demonstrates the responsibility to reveal the patented innovation. According to Section 8(1) of the Act, the patent holder shall reveal all required facts linked to various relevant or comparable uses of innovations recorded by him or on his behalf, during the application or within 6 months after applying. Furthermore, Section 8(2) of the Patent Act of 1970 imposes additional requirement on the patent owner, namely, putting out all data sought by the Controller of Patents within a 6-month period beginning when the demand was made.
2. Obligation to appeal for investigation: According to the method outlined above, it is the patent owner’s responsibility to request that the Controller of Patents review the patent’s growth and development, as outlined in Section 11(B) of the Patents Act of 1970.
3. Obligation to respond to objections: The inspection request must first go via the hands of an analyst, who examines the growth and then transmits it as the First Examination Report (FER). Following that, the Controller of Patents accepts the transmitted report. In other situations, the analyst asks specific concerns that are emphasised in the FER, and it is the patent holder’s responsibility to react to such oppositions and offer his assent within a year of the FER’s issue. During such time, the patent holder’s application is said to be surrendered by the Controller of Patents.
4. Requirement to pay statutory fees: Another obligation of patent holders is to pay all statutory expenditures necessary to get a patent grant, failure to which might impede the registration and application process. Section 142 of the Patent Act of 1970 contains provisions pertaining to the payment of charges and the repercussions of non-payment.

Limitations of Patent Rights

There are four standard limitations of patent rights

1. Limitation on private and non-commercial use: Here the patent holder is constricted from using the invention for private purposes or for stating for monopoly over commercial activity. If the government has an idea that the patent holder is not using the patented invention for profit, only then it can admit a compulsory license to a third party. Section 84 and section 92 of the Patents Act gives a compulsory license. It can be called off when the patented theme is not available for the general public at reasonable prices. These provisions are generally used in pharmaceutical drugs. Accordingly Section 85 of the said Act provides provision relating to private and commercial use.
2. Exception of experimental/scientific use: The exception provides that the patented process or product can be used by any person for the purpose of undertaking any scientific experiment or carrying out research. Introducing this exception was principal as it was important to protect those who were conducting ‘bona fide‘ research and experiments. Which allows the third party to conduct research using the patented material without infringement of the patent right of the holder.
3. Regulatory-use/prior-use exemption: Even if providing patent rights to the patentees to enforce them for the new inventions, which leads to monopolies and private use of the patented products, which added Section 107 A to the Indian Patents Amendment Act, 2005. This said provision provides an exemption to the manufacturers of generic drugs so that they can use the patented product to raise information allowing them to seek marketing approval outside the country also known as bolar provision. However, the manufacturers can use the manufacture and sell the product in the market even after the date of expiry which is 14 years from the date of filing the patent application.
4. Exhaustion of patent rights: this provision says that if once the rights of the patented product are sold in the market, the patent rights of the inventor gets exhausted. According to this, the patent holder loses his control after the formation of this limitation that once the invention is sold in the market, and then the purpose behind granting the patent for the product would get defeated. This implies that the patent holder has given the right to manufacture, to use and sell the patent product to another person in return losing his own absolute rights.

Conclusion

The patent holder is provided with a number of rights in order to protect and promote their invention. However, this does not stop the criminal from committing patent infringements. That the infringement of patentees can be curtained when the rights laws are put in place and absolute ones updated to accommodate the changing situations. Where patentees have the complete right to file suits against all forms of infringement and this, creativity and productivity are encouraged.