RIGHTS OF THE PATENTEE AND INFRINGEMENT OF PATENT

 

 

INTRODUCTION

The enforcement of a patent ensures that the intellectual property rights of the inventor are protected. The grant of a patent provides the owner of the invention with the exclusive right to make, use, sell and distribute the article of the invention. The patentee has been empowered to assign licenses, patents and promote the product in line with the laws of his country. It should be noted that the rights of the patentee are not absolute which makes it subject to limitations and various considerations.

The patent enthrones the inventor with the total rights to the invention. This right empowers the inventor to regulate how the product can be used, who uses and to what extent it can be applied. To enforce his rights, an inventor will have to file an application for the grant of patency to his invention. After the formal processes and considerations are concluded, the exclusive rights will be granted to the inventor.

MEANING OF PATENT

A patent is an invention based legal document that defines and provides the bearer with exclusive rights to exclude others from producing, selling, or distributing the invention. The importance of the patent is to encourage creativity in discoveries and inventions that are beneficial to the government and the society at large.

MEANING OF INFRINGEMENT

Patent Infringement means the violation of a law or right. Infringement of an intellectual property or rights is the act of using a product or invention with a valid patent without the authorization of the inventor or patentee. Patent infringement is the unauthorized selling, importing, and manufacturing of a patented invention without the authority of the owner.

RIGHTS OF THE PATENTEE

The following are the rights of the patentee which can lead to infringements if violated.

• Right to exploit the patent: The owner of the patent is granted the right to manufacture, use, sell and distribute the patented item in India. If the invention is a procedure of production, the patentee has the right to exercise and direct the method of the process. The agent of the patentee can enforce this right.
• Right to assign and license: the owner of the invention is granted powers to deal with the patent in considerations of granting or assigning of license to others. In case there is more than one inventor, the co-owner can delegate his rights to the granting of license with the permission of the colleague in the invention and authorized by the controller.
• Right to Surrender the Patent: A patentee with the permission of the controller can decide to surrender the patent. When such a case arises, the controller will advertise the patent in line with the rules governing the process in which he will notify the parties interested in the offer. The interested person will write to notify the controller of his interest and if the controller is satisfied with the positions of the patentee and the interested party, then the patent will be surrendered.
• Right before sealing: Section 24 implies that a patent is sealed from the date of notification for acceptance to the date of acceptance of the notification. The right of the patentee begins after the notification for acceptance has been presented.
• Right to apply for the patent of addition: this is expressed in sections 54 to 56 of the Act. A patent of addition allows for the modifications in an existing invention and an applicant for notification of acceptance is granted the rights to the patency of the same product or idea.
• Right to make convention application: An Indian patentee can apply for the protection of his patent in a convention in other countries.
• Right in case of Infringement: when any of the rights of the patentee is violated, then it is an infringement. When the invention of the patentee is distributed, sold, used and manufactured within India, the right of the patentee has been violated. In case of an infringement, the owner of the invention can approach a district court of competent jurisdiction to entertain the case.
• Right to be issued duplicate patent: the Act states that the patentee has the right to apply to the controller to issue a duplicate patent in event of theft or damage to the original.
• Right to be supplied copies and certificates: this allows the patentee to be issued with certified copies of the patents after the payment of a fee.

TYPES OF INFRINGEMENT OF PATENTS

There are two types of infringements of patents: Direct and Indirect Patent Infringement.

Direct Patent Infringement: this is the most common form of infringement. This occurs when a product that is in close resemblance in all considerations to the patented product is sold, produced, used and distributed without the permission of the inventor.

Indirect Patent Infringement: this is further divided into two parts; which are infringement by inducement and contributory infringement.

• Infringement by inducement is when a third party causes another to indirectly infringe on the rights of the patentee. This involves selling parts of a product that can only be used by the patented invention, selling an instruction for usage of a product in such a way that infringes the rights of another existing product. In this case, the inducer is fully aware of the infringement.
• Contributory Infringement the marketing of parts of a patented invention which had been created to be used only in the invention. Contributory infringement takes place when the seller intends for the product to be infringed.

EXCLUSION FROM INFRINGEMENT

The following are the acts that are not included in cases of infringements on patented products.

Government Use: an invention can still be used by the central government or an individual approved by it even after the patent has been sealed. It is possible that the patented product may be from outside the country or may have been designed for the government.

Research Exemption: an individual can use or recreate the patented product for the purpose of the experiment. It is acceptable if the product is made for research and imparting of knowledge to students.

Supply of Patented Drugs to Health Institutions: an invention which has been patented and is medicinal can be imported by the government with the aim to distribute to its health facilities.

Use of Patented Invention on Foreign Vessels: patents rights are excluded from infringements in situations where a foreign vessel lands on an Indian territory and uses the invention for construction purposes.

The Bolar Exemption: this takes place where the invention that has been patented is used, imported, sold, or made for reasons that will only relate to information development and submission to relevant authority in India and anywhere in the world.

REMEDY FOR INFRINGEMENT

The patentee or co-owner of the invention may file a suit against the infringer only before the end three years from the time of infringement. It is not required that the infringer be given a notice of suit before the filing is concluded.

This suit can be filed against offenders in categories of importers, manufacturers, servants and even users of the patented product.

PATENT JURISDICTION WHILE SUITS FOR PATENT INFRINGEMENT IN INDIA

• A suit for infringement can be filed at the district court or high court. In situations that the infringer comes up with counterclaims in respect of revocation of the patent, the suit and the emanating claims will be transferred to the high court to determine the veracity of the claims.
• In accordance with Section 9 of the Civil Procedural code of 1908, the patentee can request for a court hearing on the matter in a court of competent jurisdiction in a place of his work or residence. The suit can also be brought to a court within the jurisdiction of the area in which the infringement occurred.
• The suit for infringement can only be filed on the condition that the patency has been granted. In a situation that the court rules in favor of the patentee, then the patentee can claim damages for infringement activity that took place between the date of publication of the patency and granting of the application.
• The suit for infringement can be filed by a by a licensee. In most cases, the licensee can notify the inventor to file a suit for infringement to prevent the infringement of the product. In cases that the patentee refuses to take a court action to address the infringement, the licensee can do that in his name.
• In situations that the patentee has lost its legal rights because of non-renewal of the patency by refusing to pay renewal fees, he may not be allowed to file an infringement suit between the date of dormancy of patent and the application for renewal of the patent.

 

CLAIMS THAT THE PATENTEE CAN MAKE AGAINST THE INFRINGER

• Declaration – as stipulated in the Relief Act, a patent owner can pray that the action of the infringer is declared unlawful and therefore should be compensated by the infringer.
• Injunction – the civil court is empowered to grant an injunction against the infringer.
• Damages – the patentee can claim damages from the infringer.
• Account for Profit – whatever profit has accrued to the infringer during the violation of the rights of the patentee can be claimed by the inventor.
• Certificate of validity – the patentee can ask the court to declare the certificate of patency valid and the period of the certificate be declared valid to protect it against any form of infringement.
• Cost – the patentee has the right to ask the court to recover from the infringer any expenses that he may have incurred during the court process.

 RIGHTS TO DEFENCES IN THE CASE OF INFRINGEMENT

As stipulated in Section 107 of the Indian 1970 Patents Act, the defendant in a suit for infringement may take one of the following defenses;

• The patentee has lost the right to sue for infringement
• The invention was used on the permission of the license.
• The allegation of infringement is untrue
• The act was not intentional or committed during the ineffectiveness of the patent.
• The claims of infringement are not valid.

CONCLUSION

There have been numerous court cases in India on copyright and trademark violations which are more than patency litigations. Infringement of patentees can only be curtailed when the right laws are put in place and the obsolete ones updated to accommodate the changing situations. Patentees have the exclusive right to file suits against all forms of infringements and in this, creativity and productivity are encouraged.