What are the Aspects of Patent and its infringement?

WHAT IS THE NATURE OF PATENTS

A patent may be defined as a grant by the state of exclusive rights for a limited period in respect of a new and useful invention. These rights are in general manner limited to the territory of the state which is granting the patent, so that an inventor (one who invents) wishing protection in a number of countries must obtain separate patents in all of them. And also, it was very efficiently stated in one of the judgments which is elaborated in the next paragraph.

The Delhi High Court observed that patent is an exclusive right, which the inventor has over his invention as a reward in return of the disclosure of his invention to the public for the benefit of the society. The exclusive right of the inventor over his invention includes his right to assign his invention or transfer any interest in his invention in favor of any other person in consideration of monetary gain. Thus “a monopoly of the patent is the reward of the inventor“.^[1] It is very important to analyse that the rights given by a patent do not include the right to use the invention, rather to exclude others from doing so. The patentee’s freedom to use his own invention may be limited by legislation or regulations having nothing to do with patents, or by the existence of other patents. It is very often heard that patents allow companies to do something or other. But it does not; it only allows them to stop someone else from doing it. The right to prevent others from carrying out the invention claimed in a patent may be enforced in the courts. If the patent is valid and infringed, the Court can order the infringer to stop his activities as well as providing other remedies such as damages. It is also important to distinguish between ownership of an invention or a patent and ownership of goods, which incorporate the invention or fall under the patent. The question of who owns the goods is completely different from that of who owns the patent.^[2] Different from this situation with regard to copyright, infringing goods do not become the property of the patentee, and even if the patentee manufactures the goods, once he has sold them, he can never retain control over their subsequent use or resale. The fundamental distinction between the ownership of patents and the ownership of things, which are patented, is often misunderstood or deliberately misrepresented. So that for example patents granted for transgenic animals are described as giving ownership of ‘life’ and patents for isolated human genes are talked of as if they gave property rights over human beings.

PATENTS AND RIGHTS

A patent is nevertheless a piece of property and may be a very valuable one. Although intangible property, it may be dealt with in the same ways as tangible property such as real estate. Just as the owner of a house may live in it himself, sell or can give it on rent to another, mortgage it, or even have it demolished. So, a patentee may keep his patent rights or assign the patent to someone else, and can also grant someone else a license to do something covered by the patent, mortgage the patent or of course abandon the patent to the public. Abandonment of patent rights nowadays has become very popular and is very common in the great majority of countries, reason being, renewal fees often rise steeply as the age of the patent increases, and only those patents, which are of real commercial importance, are kept alive for their full term. In any event no patent can go on indefinitely. It is a point basic to the whole concept of patents that the exclusive rights are granted only for a limited period of time and not for indefinite periods and that once this term expires the general public is free to use the invention. In Britain, generally patents were granted for a term of 14 years. In 1919 the term became 16 years and extensions were possible in exceptional circumstances. It can be understood with the help of an example: if the patentee was unable to exploit his invention because of war time conditions or if he had a particularly deserving invention on which, through no fault of his own, he had not made sufficient profit. A combination of these two grounds enabled the British patent for a pioneering invention relating to color television to be extended to a total term of 32 and half years: unfortunately for the patentee, his infringement action against producers of colour television sets was unsuccessful, the patent being finally held invalid.^[3]

PATENTS AND RIGHTS: COMPARED

In U.S.A. and Canada, the term of patent was until fairly recently 17 years from the date of grant, which meant that the longer the patent office took to grant the patent, the later was the expiry date. It means that the countdown starts after the date on which the grant took place. In most other countries, the term ran from the date of application and so the expiry date was fixed irrespective of how long the process of grant might take. A term of 20 years from the filing date was set for European Patents by the European Patent Convention, which came into force in 1978, and the Patents Act 1977, which came into force on the same day, set the same term for British National Patents. That is the reason it has become the international standard set by the GATT-TRIPs agreement and is now followed by most of the countries. In India, earlier the term of patent was 14 years with respect to all inventions but exceptions were there in the inventions relating to food and drugs. For such inventions only, process patents were available for a period of 5 years. But after the 2002 amendment to the Patent Act 1970, the term of patent has become 20 years for all inventions.^[4]

The term of available patent protection is more important in some industries than others. Here comes the medicine sector. In the pharmaceutical industry for example, where it takes many years for a product to reach the market, and where the same product, once introduced, can usually be sold for 20 years or more, it is vital to the patentee to obtain as long a patent term as possible. On the other hand, in an industry in which products can be brought to the market quickly but are rapidly replaced by newer products, the patentee is more interested in obtaining rapid grant of an enforceable patent than in prolonging patent term. For products, which require a long approval process before marketing, such as pharmaceuticals and agrochemicals, it is now possible to obtain extensions of the standard patent term in the U.S.A., Europe, and Japan.^[5]

PATENTS AND INFRINGEMENT

The Indian Patents Act 1970 does not specifically define activities that constitute infringement of patents. Section 48 of the Indian Patents Act 1970, however, in a manner confers exclusive rights upon the patentee to exclude third parties from making, importing, using, offering for sale or selling the patented invention, patented product or patented process. It can therefore in a way be concluded that violation of aforementioned monopoly rights would constitute infringement of a patent.

Where the infringer has taken all the essential features claimed in the patent, while manufacturing a product or an article, it will be a direct infringement. Where the infringer uses all features claimed in the patent but alters one or more unessential features then also it will be an infringement in a way or the other, but since it is indirect it is called colourable imitation. Copying the essential features of the invention is sometimes referred to as taking the pith and marrow of the invention.^[6] In Lallubhai Chakubhai Jariwala v Chemical &Co, the Bombay High Court held that the important and essential part of the substance of the plaintiff’s invention was the use of the pressure and therefore there could be no infringement unless the use of the pressure by the defendants in their process was proved. In Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries, the Supreme Court of India laid down the following guidelines to determine infringement of a patent,

1. Read the description and then the claims;
2. Find out what is the prior art;
3. What is the improvement over the prior art;
4. List the broad features of the improvement;
5. Compare the said broad features with the defendant’s process or apparatus; and
6. If the defendant’s process or apparatus is either identical or comes within the scope of the plaintiff’s process or apparatus, there is an infringement.

Exception to the Infringement or Non-Infringing Activities:

1. Government Use
2. Research Exemption
3. Supply of Patented Drugs to Health Institutions.
4. Use of Patented Invention on Foreign Vessels.
5. Parallel Import.

CONCLUSION

A patent is a limited exclusive right  given to individuals or corporations for a limited number of years for technological inventions/innovations in an effective manner so that others can be prevented from using the patent technology. It is granted on the request of the applicant by the patent office in respective countries. Hence the patent right is available within the territory of the granting countries. Patents are tools of public policy that are supposed to guarantee that society as a whole benefits from any innovation. The development of Patents can be traced down to two aims:

Firstly, to promote the publication of ideas, inventions and creations in order to make them available to every other person, and secondly, providing economic incentive for people to invent or to engage in creative efforts. The patent system was apparently devised to encourage inventions and enable the public to enjoy the benefits of the new inventions. Therefore, the first and foremost use of the patents should be that it should be used to work and fulfil the meet and the full demands of the domestic market.

Much of the Indian patent law is derived from English law. In the U.K. the concept of patent originated from the exercise of royal prerogatives to the grant of monopoly. In India, from a very early period, patent for an invention has always been the sole creation of the statutes. The idea of conferring market monopoly as an incentive to innovate has its own old roots. In the course of time both individual and public justifications have played a prominent role in the arguments in favour of patent protection for inventions.

The conferment of intellectual property right in the form of patent is justified both from the perspectives of the inventor as well as the general public. If we consider it from the perspective of the person who invented it, these rights act as an incentive for him to invent and will encourage him to invest in working on new inventions. The requirements of patentability ensure the general public that the invention is not kept out of their reach. Thus, the patent system attempts to harmonise the interests of inventor and public at large. Patents do not protect each and every inventor who conceives an invention. Every legal system insists upon certain conditions for an invention to get patent right. Although the requirements vary in different legal systems, certain basic common features do exist. They are novelty, utility or industrial applicability and inventive steps. Every patent system has excluded laws of nature, physical phenomena and abstract ideas from patentability and kept certain other inventions outside the patent system on the ground that they are against public order and morality.

^[1]Telemecanique and Controls (I) Ltd v. Schneider Electric Industries 2002 (24) PTC 632 (Del.).
^[2] Martin J. Adelman et al., Cases and Materials on Patent Law 1 (1998).
^[3] Vatensi v. British Radio Corp. Ltd, (1973) RPC 337 (CA).
^[4] supra note 1, at 1.
^[5] supra note 2, at 1.
^[6] Dr. Prativa Panda, Infringement of Patent Rights In India, Indian Journal of Research, 2016