This article is written by Presha Naik, a student, from SNDT Law College, the further article is about the Patent and its laws and treaties. The various rights which are been granted as for patents law in India as well as globally infringements done by any person unauthorized what would be the later consequences of it and the rights which comes under the patents act.
INTRODUCTION TO PATENTS
Patents are the granting of an exclusive rights to a certain process or to an product or granting the exclusive rights to an invention but these all should be in a way where they are the most exclusive and unique invention which has an altogether a new ways of doing things and that has a solution to the things that are being offered. Patents are further of four main types and they are the Utility patents, Plant Patents, Provision Patents, Design Patents. Patents also has a particular limit or a time of expiration to it. That means after a certain period of time after the filling process the patents gets expired. There are permanent patents also which has overall various kinds of restrictions on that particular product or that process for as such product or invention made. Patents are never the ‘forever patents’ which lasts long the lifetime it has a period of expiration.
WHAT KIND OF PROTECTION DOES A PATENT OFFERS?
- In here, the exclusive rights are been given to the owner of the product after his patented invention, so, the owner has the right to stop others to commercially using the invention the owner has made.
- He may stop others from using the invention which is patented to being commercially use, distributed, imported, exported or sold without the consent of the owner.
HOW LONG DOES THE PATENT LAST?
- The Patent has its period of expiration, it can be up to 20 years of span after the filling of the form by the applicant.
- This protection which is granted for any of the said invention will only be applicable for a limited period of time it the expires.
STANDING COMMITTEE (SCP)
- The standing committee is the committee where the patents law balances the issues regarding the patents laws and also balances the framework of international issues and treaties as well.
- Committee members discuss, debate and decide on diverse issues related to the development of patent law to meet society’s evolving needs. There are the observer organizations and also the its member states who look into such matters.
1. THE PARIS CONVENTION TREATY
- The Paris Convention Treaty was signed in the year 1883.
- It was the first major treaty to be signed as because it was created to ensure the creators to ensure them that their work as an intellectual will be protected in every country.
- In the Paris Convention Treaty, it was applied to the industrial property in its broader sense as, to the, utility markets, plant patents, trademarks, geographical indications, trade names etc.
- Also, over here the term geographical indication means which is related to a particular region. A patent which is given to only up to an extent of a particular region. It is a right which is given according to the jurisdictions of the particular region.
- It ensures the producers that their product should be according to the standards which are set as per the codes in the patents and not beyond that.
- Over here the example of Darjeeling can be given, here the producers were said that they can exclude the term ‘Darjeeling’ because it can term only when the tea leaves which are produced are as per the standard procedures set out in the code of practice.
- There were the three substantive provisions which were given under the Paris Convention Treaty, they were the provisions of national-laws, right to priority, common rules.
2. PATENT COOPERATION TREATY
- The Patent Cooperation Treaty also known to be as (PCT).
- This treaty was established for filling of the application by any person who is the inventor of any such unique inventions been made, can seek protection under this patent, which will help them ensure about their rights and protection of their inventions not in any certain country or region but in broader terms it can ensure and seek protection by various large number of countries together.
3. STRASBOURGH AGREEMENT CONCERNING THE INTERNATIONAL PATENT CLASSIFICATION
- The Strasbourg Agreement was concerned and establishes the classification for various searches like the search for issuing a patent for something which was previously known but due to a person now has used some kind of different technology to it, it is , then been invented as a ‘new-invention’. Also, called as “prior art”.
- Under this treaty it establishes the classification of (IPC)- International Patent Classification.
- It is indispensable to retrieve an art which was prior to it.
- It divides the technology into eight sections under which there are 80,000 sub-divisions to it.
- The patent authorities can thus retrieve or take aback the patent issuing for such prior art, also it can take through the many potential investors, research and development inventors, technological inventors as such, etc.
4. BUDAPEST TREATY
- This treaty was thus signed for the purpose related to the biotechnological matters.
- It was in this treaty which stipulates the international disclosure of the treaty.
- It was adopted in the year 1977.
- All the states whoever are the member party of the said treaty are very much likely to deposit the microorganisms as a part of the patent procedures irrespective of wherever its authority is been located.
- So, the patents need to be created for as such procedures relating to the biotechnological matters as related to such.
- Under the term “microorganisms” it includes the whole types of it and every matter related or included under the biotechnology.
5. PATENT LAW TREATY (PLT)
- The maximum terms of requirements which is used for the procedural requirements as such including all the filling of applications and documents as such also.
- These procedural formalities related are to strictly concerned to the national/regional extent only.
- With this significance, exception of filing date requirements, the PLT provides the maximum sets of requirements the office of a Contracting Party may apply.
6. WIPO LEX OR IP LAWS TREATY
- It was in the WIPO Lex treaty where the public can get free of charge to get access on the legal information which will be provided.
- All whoever has any questions or want some kind of information basis on the patent procedural or legal information on the international treaties or the national laws or any information regarding the intellectual property (IP) laws etc. can keep a check and get the following information from the WIPO Lex or IP Laws Treaty sites.
7. LEGISLATIVE AND POLICY ADVICE
For, if any, there are obligations or issues regarding the flexibilities of the WIPO treaty or under the international laws or treaties the said states can thereafter request the WIPO as it will provide with legislative information regarding the same.
HISTORY OF PATENTS IN INDIA
- The history of patent law in India was started since 1911,but, in it was at several times amended further. The Patents and Design act, which was enacted in the 1911 was then later presented in the year 1970 and then came into force in the year 1972 which was then amended and also it had consolidated the provisions with regards to the patents law in India.
- In the year 2005 the patents law was again then amend with the various modifications in it where some of it were regarding that the there should be an extension to the fields technology including, food, chemical, microorganisms’ drugs.
- These amendments which were made were strictly with regards to the provisions made to the Patents Law in India.
PROCEDURE FOR GRANTING OF A PATENT IN INDIA
- The applicant should firstly fill the application form on the patent product he wants to apply for.
- The person then has to fill in with provisional specification of the form with a very much complete specification with it regarding the specification of the product which is to be patented.
- If, for any, reason the person or the owner of the product has not filled the form with a complete specification about the product then his product may get abandoned.
- If, the person has filled up the provisional specification of the product then the person can thus request for the examination of the form, for further procedure to it.
- After the examination procedure is been completed then the next procedure starts of the ‘First Examination Report’ (FER) it is in particular based on the specification form of the product that you have filled.
- Reply to the FER and start by the refilling the amended documents.
- After that just reexamine the issues and the objectives which are related to it. If after the reexamination there are certain issues or the objections does not comply with the issues then the form gets abandoned for further 12 months.
- In further over here, if it complies with all the objections then the patent will be granted.
- When there is reexamination of the issues then the controller here hears the matter and if he approves of the matter in the hearing then the patent is granted but if he refuses the approval of the patent the in here the person who is the owner can thus further incase can appeal to the IPAB (Intellectual Property Appellate Board)and over here after appealing if the IPAB approves then the patent is granted but if not then it will be refused only.
- After the patent is granted then there should two ways to it that is there an opposition and non-opposition.
- After the renewal of the patent the patentee over here should pay the renewal fee every year as prescribed by the schedule 1. For the first and second years there should be no fees to be paid, after that the patentee should pay the said amount which is to be paid, and if not, then the patent will be ceased.
- If the renewable fee is paid by the patentee the patent will continue till 20 years further.
FILLING OF THE APPLICATION BY A FOREINGNER
- Under the Paris convention treaty, of Protection of Industrial Property,1883, it was signed by the countries who were the members of the said treaty, where in this it was held that if any foreigner who wants to patent their invention in India can adopt any of the aforesaid ways for filling the form.
- Under the Patent Cooperation Treaty, (PCT), 1970, it was held that if for any invention the foreigner has filed an application in their home country for grant of a patent they can file it in India also, the application, by this the legal representative or whoever is the assignee over here can thus make the application and also the first date of consideration will be the priority date.
RIGHTS GRANTED BY A PATENT GLOBALLY
1. The right to exclude-
- The right to exclude is basically understood as, that the patentee or who is the patent holder is infringing others to not, use, make, sell, or import the invention that is already been patented.
- The patentee or the patent holder is also dependent on the laws generally, which are established by the area or the country which might be applicable.
- These laws also stop the other person or in fact restricts the other person to not copy the same invention as such.
- Since, the essence of the right which is given or been granted is the right to exclude others from commercially exploiting the patent .
- The other person can thus make, sell, or use the invention which is patented only if there is an authorization on the behalf of the patent owner.
- There is an authorization agreement which is to be signed for any kind of purpose of selling, using, or making of the said product.
- There is also and patent license agreement which is o be signed the patent laws thus grants the monopoly rights in the invention, so that to practice a business in a particular area.
- Infringement generally means to not sell, use, or make the product in an unauthorized way or without the prior consent of the patent owner then that will be held illegal.
- Simply, it means the violation of certain exclusive rights that are granted to the patent holder.
- In the USA, the term patent holder is that the owner of the invention which is made and, infringement of any such kind of the invention made without the authorization of the patent holder then the patentee can thus sue the person who has used, sell or had made the product without his consent.
- The case will be filed in the Federal court and the relief will be granted accordingly. the defendants can also claim the infringement case that on what grounds were the infringement was held or that its action does not constitutes any of the claims as such under the patent and thereafter the court can thus hold that if the defendant’s language does not fall under the patent claims, then there is no infringement.
- Suits for filing any of the patent can thus be according to the rules and procedures of the Federal courts in the USA.
- If the person is not satisfied with the decision of the Federal court the he may file a writ of certiorari as such in the Supreme court of the USA for further claims that are supposed to be settled with regards to the Infringement.
WHAT CAN BE DONE TO AVOID THE INFRINGEMENT?
- To avoid the lengthy and expensive patent procedures the company should at the initial proceedings start to explore more modifying options.
- Also, to explore the potential options like to make some kind of changes in the product, to avoid the infringement.
- Doing your research about the claims regarding the issues previously will thus give you more ideas about the claims and issues and settlements in such cases.
- Freedom to operate (FTO) is also known as patent infringement search, where research is done ,
- Any patent attorney who is scholar at the intellectual property patent he can arrange or setup this with regards to the case.
- The FTO research will costs up to a range pf coupe of dollar in USD and a thousands and sometimes lakhs also
Author: Presha Naik,
SNDT women university, law school, 1st year