A Patent is a statutory right and legally protects an invention from being made, sold or used by others for a certain period of time. Patents can be sold or licensed. They are granted by the Government, in exchange of full disclosure of his invention for excluding others, from making, using, selling, importing the patented product or process for producing that product for those purposes without his consent. A patent is granted for a term of 20 years and has to be maintained by paying the renewal fee every year. If the fee is not paid, the patent rights cease to remain in force and the invention becomes open to public. Anyone can then utilize the patent without the danger of infringing the patent.
Application for grant of patent may be made, in accordance with section 6 of the Patent Act, either alone or jointly with another, by the inventor, assignee, legal representative of deceased inventor or assignee. A patent grants exclusive rights to that patentee and inhibits others to use a patented invention. Use of such patented inventions for the purposes of commercially making, importing or selling goods without permission may lead to swift legal action. An invention relating either to a product or process that is novel, has inventive step or is non-obvious, is useful and capable of Industrial application and does not fall within the provisions of section 3 and 4 is a patentable subject matter under the Patents Act 1970.
There is no patent that is valid worldwide. Patent protection is a territorial right and applies in the country that issues the patent. In India, it extends for up to 20 years from date of filing. However, filing an application in India enables the applicant to file a corresponding application for same invention in convention countries, within or before expiry of twelve months from the filing date in India. Therefore, separate patents should be obtained in each country where the applicant requires protection of his invention in those countries. In accordance with the provisions of Patent Act, the inventor, his assignee or legal representative of a deceased inventor or assignee, can apply for patent at the Indian Patent Office. For foreign filing, an international patent law treaty, Patent Cooperation Treaty provides a unified procedure for filing patent applications to protect inventions in each of its contracting states. A patent application filed under PCT is called an international application or simply, PCT application. An application through PCT, designating countries of interest can directly be filed at the Indian Patent Office.
It should be understood that a patent does not grant the patentee a right to sell their invention. Rather, the patent excludes others, from a legal standpoint, from making, using or selling such patented invention. A patent, though an exclusionary right, does not give the patent owner the right to exploit the invention subject to older patents. For example, many inventions are improvements of previous or outdated inventions, which are still covered by someone’s existing patent. If someone does obtain a patent on improvements for an invention which previously existed, they can only legally use it if the previous owner grants them the right to do so.
If a person violates or infringes upon an existing patent with intention to do so, the owner of the patent may seek monetary compensation for such violation or infringement and to have an injunction that prohibits the infringer from engaging in further acts of infringement. However, an accused infringer has the right to challenge the validity of the patent by filing a countersuit. If the countersuit comes through, then the patent may be revocated under Section 64 of the Indian Patents Act, 1970. Section 64 enlists various grounds on the basis of which it may be revoked, such as –
i. The invention was claimed in an earlier application of earlier priority date in India
ii. The patent was obtained wrongfully in contravention of the rights of the petitioner.
iii. The invention, so far as claimed in any claim of the complete specification, is not useful, etc.