Obligation or Duties of Patent holder

Obligation or Duties of Patent holder

1. The 1 st obligation is that the patent holder must work the patent.

2. The next obligation is to pay the renewal fees every year as per the due dates.

3. The 3 ^rd obligation is to report to the controller the progress regarding the working of the patent.

Renewal fees need not be paid for a period during which the patent is kept as a secret as per the direction of the controller of patents. If the patent holder fails to pay the renewal fees with in the due date as extension of 6 months is possible. If the renewal fee is not paid even within the extended period, the potent ceases from the date on which the renewal fees was due.

The consequences of failure to pay the renewal fees:

The patent ceases or lapses. An application for restoration can be filed within 1 year from the date when it lapsed with sufficient reasons for non-payment of renewal fees.

1. The restoration can be allowed by the controller of patent subject to certain conditions.

2. The second consequence is that the patent holder is not entitled to any infringement relief

between the date of lapsing of the patent and the publication of restoration in the gazette.

3. The third consequence the patent holder will not be entitled to claim any damages on account of profit between the time of lapsing and the date on which extension is granted by the controller. Lapsed and abandoned patents cannot be re-patented.

Compulsory licensing of patent

         

Compulsory licensing of patent

Compulsory licenses are generally defined as "authorizations permitting a third party to make, use, or sell a patented invention without the patent owner's consent."

Under Indian Patent Act, 1970, the provision with regard to compulsory licensing is specifically given under Chapter XVI. 

The conditions which need to be fulfilled in order for a compulsory licence to be granted are laid down under Sections 84 and 92 of the Act.

As per Section 84, any person who is interested or already the holder of the licence under the patent can make a request to the Controller for grant of Compulsory Licence on patent after three years from the date of grant of that patent on the existence of conditions mentioned in the Section 84 of the Patents Act, 1970.

While granting the compulsory licence, the Patent office will take into account few measures such as the nature of the invention, any measures already taken by the patentees or any licensee to make full use of the invention, ability of the applicant to work the invention to the public advantage and time elapsed since the grant of the patent i.e. worked or not worked.

At any time after the expiration of three years from the date of the grant of a patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely: —

(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

(b) that the patented invention is not available to the public at a reasonably affordable price,

(c) that the patented invention is not worked in the territory of India.

Rights of patent holder

Rights of patent holder

1. Right to exploit the invention- It is the right to use, sell, manufacture and distribute the patented item.
2. Right to assign and license- It is the right to grant the licence to others. If there are co-workers, then the owner can give the right to the co-worker for licensing.
3. Right to surrender the patent-The patent owner has the right to surrender his work with the consult of the controller. After the controller approves then it will be sent as a public advertise so that the people who are interested and working in the same area can apply for it.
4. Right before sealing – section 24 implies that the sealing begins at the date of notification to the date of acceptance. Right of the patent owner starts only after the date of acceptance.
5. Right to apply for the patent of addition: The owner has a right to apply an additional project to a patent during the processing of the before applied topic.
6. Right to make convention application- During the application of the patent, the owner can file the application directly by attaching the conventional application itself.
7. Right to put case against infringement – Owner has the right to file the case against the infringed persons.

MEANING OF PATENT

1. Patent is a grant for an invention by the Government to the inventor in exchange for full disclosure of the invention. A patent is an exclusive right granted by law to applicants / assignees to make use of and exploit their inventions for a limited period of time (generally 20 years from filing).
2. The patent holder has the legal right to exclude others from commercially exploiting his invention for the duration of this period.
3. In return for exclusive rights, the applicant is obliged to disclose the invention to the public in a manner that enables others, skilled in the art, to replicate the invention.
4. The patent system is designed to balance the interests of applicants / assignees (exclusive rights) and the interests of society (disclosure of invention).

Intellectual property and economic development

Intellectual property and economic development

1.   The contribution of intellectual property to the economic and cultural development of the country is substantial.

2.      Granting of the patents encourages and enables others in the field of manufacture to improve upon the products, the methods of production and utility to the common man.

3.    The patent specifications are available to the public as a part of patent application. Thus others can improve upon the specifications and also avoid duplication.

4.     However, confidentiality of the patent is not available to the public and it can only be obtained for a price under agreement of the patentee.

5.      Industrial design protection encourages the people with creativity to develop new designs for the products. Thus various consumer articles such as toys, gadgets, furniture, tools etc… are continuously improvised leading to increased economic activity.

6.      Protection of trademark enables the consumer to obtain the right product of right quality. Generally, the trademark creates an impression and preference of the consumers with respect to consumer in identifying the product of his choice easily.

7. Copyright is applicable to variety of fields such as printing, publishing, entertainment, music recordings, motion films etc…The protection against infringement are different for different fields of copyrights.

8.    The design drawings of machinery, structures, architecture etc…are also protected under copyright laws.

ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST INFRINGEMENT

ENFORCEMENT OF RIGHTS AND REMEDIES AGAINST INFRINGEMENT

The various legislatures that have been enacted assured the IP owner certain rights, these rights also specify what are to be considered as violation and the punishment or fine for such punishments.so of them are listed below.

1.      Patent: (Ref: Patent act :1970, Patent rules:2003) :

·         Patent enforcement is a lawsuit filed by the patent holder against parties who have infringed upon their patent rights. 

Patent infringement remedies:

a.       Civil remedies:

·         Patent enforcement usually results in one of two legal remedies.  

·         The first is a monetary damages award, where the infringing party agrees to reimburse the patent holder for any economic losses caused by the infringement, as well as royalties. 

·         The second involves an injunction, which is basically an order requiring the defendant to cease their infringing activities.

b.      Criminal remedies:   

·         Section-118, Patent act: Punishment of contravention of secretary provisions relating to certain inventions and punishment of offences by companies.

·         Section-119, Patent act: Punishment against falsification of registry in register.

·         Section-120, Patent act: Punishment against claim of unauthorized patent rights.

2.      Copy right: (Ref: Copy right act :1957, copy right rules:1958):

·         Infringement of copyright occurs when someone uses a copyright work as a whole, or any substantial part of it, without the copyright owner’s permission and their use is not covered by a copyright exception

Copy right infringement remedies:

a.       Civil remedies:

·         Interlocutory Injunctions:  It is a court order to compel or prevent a party from doing certain acts pending the final determination of the case

·         Pecuniary remedies: compensatory damages which let the copyright owner seek the damages he suffered due to the infringement.

·         Anton pillar orders: an injunction restraining the defendant from destroying or infringing goods

b.      Criminal remedies:
   

·         Punishment through imprisonment which, under Indian law, may not be less than six months but which may extend to three years

·         Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs. 200,000.

·         Search and seizure of the infringing goods including plates which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work.

·         Delivery up of infringing copies or plates to the owner of the copyright.

3.      TRADE MARK: (Ref: trade mark act :1999, trade mark rules:2002): Trademark law grants a monopoly on the use of a word, phrase, symbol or design that distinctively identifies a product used in commerce. You can protect your trademark locally by using it in commerce before anyone else does. 

a.       Civil remedies:

·         Temporary injunction, as the name suggests, is for a stipulated period of time or until any further court order and can be granted at any stage of the suit. 

·         Interlocutory Injunctions

·         Pecuniary remedies

·         Anton pillar orders

b.      Criminal remedies:

·         Section-482: punishment against using false property mark.

·         Section-486: punishment against selling the goods with copied TM.

Commercial exploitation of Intellectual property

Commercial exploitation of IP

1.      The IP system provides exclusivity over the exploitation of innovative products and services, creative designs and business identifiers.

2.      Exclusivity means that an owner of IP has the right to prevent anyone else from using and exploiting the IP right

3.      Exploiting IP Assets: There are two of ways

·         Direct use: core to competitiveness of product or service.

·         Indirect use: Sale, license, franchise or merchandise, Joint ventures and strategic alliance.

4.      Direct commercialization of the IP asserts by oneself: Individual Exploitation to maintain the competiveness of the product

·         Make/produce copies of the products and sell them.

·         Reproduce the works on different types of products.

·         Exhibit the works in craft exhibitions, fairs, online catalogues, etc.

·         Enforce your IPRs against infringers.

·         In case of patent, the patentee himself can exploit the patent by manufacturing or producing, assign his rights or licence them to others on royalty basis or for a lump sum payment.

               

              Advantages: Direct quality and exploitation control.

              Disadvantages: High costs and risks.

5.      Indirect Commercialization of IP Assets: Mediate exploitation of IP Assets by third parties based on contractual agreements with the IP owner.

·         Can be in a form of Assignment of the IPRs to a third party.

·         License of the IPRs to a third party.

Advantages: Low investment / Low risks – Potentially high return

          

             Disadvantages: Lack of control – Special attention to contracting.

TYPES OF INTELLECTUAL PROPERTY

The types of intellectual property include:

1.      Trade Secrets: It is the type of intellectual property in the form of a formula, process, design, instrument, pattern, commercial method which is generally ascertainable to others so that the business can obtain the economic advantage.

2.  Trademarks: It is the type of intellectual property consisting of sign, design or expression which identifies products or services. Trademarks which are used to identify services are called as service marks.

3.      Copyrights: It is the exclusive right given to the creator for his creative work (music, literature, poems, songs). Copyright is intended to protect the original expressions of idea in the form of creative work, but not idea itself.

4.      Patents: It is the legal right given to the owner to exclude others from making, using, selling, and importing an invention for a limited period of time, usually 20 years.

5.      Geographical indicators: It is the name or sign used on the products which corresponds to a specific geographical location or origin.

Nature of Intellectual property rights

Nature of Intellectual property rights

1)      Territorial:

·         In ownership of intellectual property of immovable property issues of cross borders are not probable. But in intellectual properties it is common. Example: The film made in Hollywood can be seen in other countries.

2)      Giving an exclusive right to the owner:

·         It means, a person who is not the owner, are prohibited from using the right.

·         Most of the intellectual property rights cannot be implemented in practice as soon as the owner gets the exclusive rights since it has to be tested by some public laws.

3)      Assignable:

·         Since they are the rights, hence it can be assignable(licensable).

·         It is possible to put dichotomy between intellectual property rights and material object in which work is embodied.

·         IP can be either sold, bought, licensed, hired or attached.

4)      Independence:

·         Different intellectual property rights subsist in same kind of object.

·         Most of IPR’s are likely to be embodied in the objects.

5)      Subject to public policy:

·         They are vulnerable to deep embedment of public policy.

·         IP attempts to preserve and find adequate reconciliation (understanding or separation) between two competing interests.

6)      Divisible:

·         Several persons may have legally protected interests evolved from single original work without affecting the interest of other right holders on the same item.

·         IP is indivisible and in exhaustible resource.

Example: Inventor has his invention in Germany can use the patent himself in Germany, licence it and assign it in France. Can also be copyrighted. Therefore, the rights can be divided.

INTELLECTUAL PROPERTY RIGHTS (Concept of property)

Concept of property

Property designates those things that are commonly recognized as being the possessions of an individual or a group. A right of ownership is associated with property that establishes the good as being "one's own thing" in relation to other individuals or groups, assuring the owner the right to dispense with the property in a manner he or she deems fit, whether to use or not use, exclude others from using, or to transfer ownership.

                                                                Types of property:

Generally, there are two types of property

1)      Tangible property

2)      Intangible property.

Types of tangible property:

There are three types of tangible property

a)      Property: Property includes the building and land where the business operates. 

b)      Plant: Plant refers to the area in which workers manufacture products or render services.

c)      Equipment: they are the instruments used to produce goods.

Intangible property: Intangible property is property that does not derive its value from physical attributes. 

Example: Patents, software, trademarks and license are examples of intangible property.

Intellectual property: Intellectual property is a broad categorical description for the set of intangibles owned and legally protected by a company from outside use or implementation without consent. The concept of intellectual property relates to the fact that certain products of human intellect should be afforded the same protective rights that apply to physical property. Most developed economies have legal measures in place to protect both forms of property.