UNIT- 3
INTRODUCTION TO PATENT LAW
What is Patent?
• The word “Patent” refers to a monopoly right over an invention.
• Not all inventions are patentable.
• The final product that results from an invention may be protected through
other forms of intellectual property rights.
• The statutory definition of Patent under the Patent Act as a Patent for any
invention granted under the Act
What is the object of Grant of Patent?
• The subject of Patent Law is to encourage scientific research, new technology
and industrial progress.
• Grant of exclusive privilege to own, use or sell the method or the product
patented for limited period, stimulates new inventions of commercial utility.
• The price of the grant of monopoly is the disclosure of the invention at the
Patent Office, which after the expiry of the fixed period of the monopoly
passes into the public domain.
Rights in a Patent
• Patent registrations confers on the rightful owner a right capable of protection
under the Act i.e. the right to exclude others from using the invention for a
limited period of time.
• The monopoly over patented right can be exercised by the owner for a
period of 20 years after which it is open to exploitation by others.
• Patent confers the right to manufacture, use, offer for sale, sell or import
the invention for the prescribed period.
What are the requirements for Grant of Patent?
• The application for Patent shall be made at the Indian Patent Office.
• Any person i.e. Indian or a Foreigner, individual, company or the
Government can file a Patent Application.
• The person applying for Patent shall be the true and first inventor of the
invention proposed to be patented.
• The patent application can also be made jointly.
• The patent application shall primarily disclose the best method of
performing the invention known to the applicant for which he is entitled to
claim protection.
• The applicant shall also define the scope of invention.
• The invention desired to be patented shall be- new, should involve an
inventive step and must be capable of industrial application.
• A patent application can be made for a single invention only.
Invention under the Patent Act
• The Act under Section 2(1)(j) defines “invention” as a new product or
process involving an inventive step capable of industrial application.
• The term “industrial application” refers to capable of industrial application
in relation to an invention means that the invention is capable of being made
or used in an industry
• One of the pre-requisite of invention is that it should be new i.e. the
invention proposed to be patented has not been in the public domain or that
it does not form part of the state of the art.
• Under the Patent Act, both processes and products are entitled to
qualify as inventions if they are new, involve an inventive step and
are capable of industrial application.
Requirements to Qualify as Invention
• The Invention must be new;
• Invention must involve an inventive step;
• The invention must be capable of industrial application or utility;
• The invention shouldn’t come under the inventions which are not patentable
under Section 3 and 4 of the Patent Act, 1970;
What Inventions are not Patentable?
• Non-patentable inventions are enumerated under Section 3 and 4 of the
Patent Act. Such inventions are delineated below:
• Any Invention which is frivolous or which claims anything obviously
contrary to well established natural laws is not patentable.
• Inventions which are contrary to public order or morality is not patentable.
• An idea or discovery cannot be a subject matter of a patent application.
• Inventions pertaining to known substances and known processes are not
patentable i.e. mere discovery of a new form of a known substance which
does not enhance the known efficacy of that substance is not patentable.
• An invention obtained through a mere admixture or arrangement is not
patentable.
• A method of agriculture or horticulture cannot be subject matter of patent.
• Plants and animals in whole or in part are not patentable
• A mathematical or business method or a computer program per se or
algorithms is excluded from patent protection.
• Matters that are subject matter of copyright protection like literary, dramatic,
musical or artistic work is not patentable.
• Any scheme or rule.
• Presentation of information
• Topography of integrated circuits.
• Traditional knowledge.
• Inventions relating to atomic energy.
Infringement of Patent
• Infringement of Patent primarily refers to intrusion or violation of the rights of a
Patentee against which the Patentee has statutory rights under the Act.
• The factors that are essential in determining infringement of a Patent are as
under:
• While determining infringement it has to be assessed whether the infringing activity
fell within the scope of the invention.
• The infringement has to be determined with regard to what has been claimed as
invention under the Patent Act by applying the principles or standards of
construction.
• To determine whether the infringing activity violated any statutory rights
conferred to the Patentee under the Act. In this respect reference can be made
to the rights of the Patentee with respect to a product patent and process
patent.
• To determine the infringer i.e. the person liable for the infringement.
• To determine whether the infringing act fell within the acts which do not
amount to infringement under the Patents Act i.e. excluded acts of
Government use, use of patented product or process for experiment or
research.
