Basics of Patent Du LLB 5th Semester
Basics of Patent Du LLB 5th Semester
Basics of Patent Du LLB 5th Semester
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Maintenance of the patent: Pay renewal fees every year
till the end of the term
– Which can be paid every year or in lump sum
– Failure results in cessation
– Restoration of patent can be filed within eighteen months from the date of
cessation of patent along with the prescribed fee. After the receipt of the
request, the matter is notified in the official journal for further processing of the
request
Working of the patent: Inventions are to be worked in
India on commercial scale. Failing which compulsory
license may be issued
•
If the grant of the patent is for a product, then the patentee has a right to
prevent others from making, using, offering for sale, selling or importing the
Infringement of Patent
patented product in India.
•
If the patent is for a process, then the patentee has the right to prevent others
from using the process, using the product directly obtained by the process,
offering for sale, selling or importing the product in India directly obtained by the
process.
Infringement cont’d...
• Patent infringement proceedings can only be initiated after grant of
patent in India but may include a claim retrospectively from the date of
publication of the application for grant of the patent.
• Under the (Indian) Patents Act, 1970 only a civil action can be initiated
in a Court of Law. Further, a suit for infringement can be defended on
various grounds including the grounds on which a patent cannot be
granted in India and based on such defence, revocation of Patent can
also be claimed.
Limitations on rights of Patentee
Use of patent by govt.(ss 99-103)
This may be with or without consent of patentee, for public
purpose (eg; distributing an invention relating to medicine
to hospitals and dispensaries or allowing its use by any
person for educational purposes)
Acquisition of invention by govt.
For public purpose
Compulsory license regime serves as important
limitation
(Under certain circumstances like when reasonable requirements
are not satisfied, a very high royalty is quoted, when the patentee
does not work the patent, the Controller can grant a license to an
interested person.)
For a New and Useful Invention
Novelty...
Testing for novelty is
synonymous to a “spot the
difference” exercise.
The following image illustrates
the novelty aspect of a patent.
The image on the left is that of a While the body of the patented
glass vessel with a resealable lid glass vessel is present in the
prior art, the absence of the
from patent application US resealable lid in the prior art
20130075356; the one on the makes the invention novel.
right is a normal glass vessel,
which forms the prior art.
Novelty and Inventive Step/
Non Obviousness
So in order to assess whether your invention is novel, you
should compare it with prior art for that invention-is there
any patent application that was made before in relation to
the same or similar invention? Is it already out in the
public, being already worked by the public? On comparing,
you may find that none of the prior art has all the features
of your invention-your invention is novel.
For establishing obviousness, mosaicing is allowed-that is
you are allowed to cite a mosaic of prior arts (2 or more
prior art references may be combined)...if the invention is
predictable on the basis of available prior art-as assessed by
a person skilled in the art, inventive step is lacking and
invention is obvious
Our very own/old Safety Pin
=
Products and Processes
Excluding the products and
processes mentioned under
section 3 and 4
Evergreening Issue & abuse of 3(d)
Section 3(d) of the Patent Act, 1970
"The mere discovery of a new form of a known substance
which does not result in the enhancement of the known efficacy of
that substance
or the mere discovery of any new property or new use for a
known substance
or of the mere use of a known process, machine or apparatus ,
unless such known process results in a new product or employs at
least one new reactant.
Is NOT patentable
Controller of Patents
Processes application/s and grants patents (ss 12)
Grants Compulsory licences (s 93)