Patent Litigation in India- A guide
A patent is an exclusive (practically monopoly) right granted by the Patent Office to an inventor to commercialize his creation for a set amount of time while still being subject to the terms of the Patents Act, 1970. The creator has the right to prohibit anyone from using his innovation for profit during this time. The patent right is statutory in character and derives from the Patents Act as a whole. Patents have to do with invention. The term "patent" is used to denote a monopoly right regarding an innovation, according to Halsbury's Laws of England.
The Division Bench of the Delhi High Court noted in Telemecanique & Controls Limited v. Schneider Electric Industries SA that a patent generated a statutory monopoly protecting the patentee against any illegal user of the patented product. "The prize of the innovator is a monopoly of the patent." The term "patent" refers to a privilege given to anyone who creates or discovers develops a brand-new, beneficial procedure, item, machine of manufacturing, material composition, or any brand-new, beneficial improvement of any of those. It is a right to prevent others from creating, using, importing, or selling patented inventions during the duration of the patent, not an affirmative right to exercise or employ the invention. It is a property right that the state accords to innovators in return for their agreement to divulge its specifics to the public.
With the inventor's prior consent, a person other than the inventor may utilize the exclusive rights granted by the Patents Act to the inventor. The recipient of a patent is referred to as the patentee.
The rights of patentee are negative rights which are enforceable at the instance of the patent holder. A patent is to confer upon the patentee the following rights:
Right to exploit the Patent
When the new invention is a product, the Patentee has the only right to use, manufacture, import, or sell it in India for certain connected uses. The right to exploit, on the other hand, refers to the sole right to employ the procedure or method inside the boundaries of India where the inventor's invention is a method or process for producing any good or material.
Right to Grant License
A patent gives the patentee the authority to offer licences, transfer rights, or enter into agreements in exchange for money. The assignment or licence must be in writing and registered with the Controller of Patents in order to be valid and legal. A patent assignment paperwork is not accepted as proof of a patent's ownership unless it is registered, and this regulation only applies to the assignee, not the assignor.
Right to Surrender
The Patentee of a Patent has the right to surrender a Patent at any time and for any reason by giving notification in the way specified. The Journal must publish the advertisement for such a surrender offer. The publishing is carried out to give the public a chance to object to the Patentee's offer of surrender. This is done when the Patentee decides to give up the Patent after realising that they will not be performing under the Patent in the future.
Right to sue for Infringement
The Patentee has the right to sue for Infringement of Patent in District Court has the jurisdiction to try the suit.
Right to Use and Enjoy Patent
The Patentee of the Patent has the sole authority to exercise, create, use, convey, or provide the patented substance or object in India, as well as to use any associated processes or techniques. These privileges may be used by the patentee, licensees, or agents.
In general, it is the plaintiff's responsibility to prove that a patent was violated in regard to a novel substance.
The onus of establishing a specific fact, viz. By virtue of section 106 of the Indian Evidence Act of 1872, the defendant will be held responsible for the method by which the defendant created a chemical that was identical to that described in his patent. It is noteworthy that Section 104A, which was added by the Amendment Act of 2002, states that the court may order the defendant to prove that the process he used to obtain the product, identical to the product of the patented process, in any lawsuit for patent infringement where the subject matter of the patent is a process for obtaining a product.is different from the patented process.
Any person may file a lawsuit for a declaration that their use of a process or their creation, use, or sale of an item does not or would not violate a patent claim against the patentee or the person in possession of an exclusive licence under the patent at any time following the publication of the grant of the patent. If it is demonstrated I that the plaintiff has applied in writing to the patentee or exclusive licensee for a written acknowledgment to the effect of the declaration claimed and has provided him with full written details of the process or article in question; and (ii) that the patentee or licensee has refused or neglected to give such an acknowledgment. This applies even if the patentee or licensee has not asserted anything to the contrary. Anything stated in Section 34 of the Specific Relief Act of 1963 is disregarded by the provision.
Unless the court orders otherwise for extraordinary circumstances, the plaintiff is responsible for covering all parties' costs in a declaration lawsuit. In a lawsuit for a declaration, the truth of a claim contained in a patent specification is not subject to challenge. It is not to be assumed that a patent's validity or invalidity is indicated by the making or rejection of such a declaration.
Given that a patentee must meet extremely high burdens of proof in order to prove a patent's crafting patent claims with care and precision involves a considerable degree of risk that they will be contested over protracted periods of time significant importance. Additionally, even when it appears that claimed innovations are being violated, patentees must Before filing claims, consider the strength of their own patent and the possibility of proving infringement of infraction before the legal system. Patentees should be aware that a negative ruling could lead to their loss. of the patent itself, and as a result, must proceed with utmost care and caution. Additionally, while seeking justice, it is also necessary to consider the public interest factors that courts would evaluate protection of a patent. As was mentioned earlier, courts occasionally demonstrated a preference for the right of the general public to use inventions over the rights protected by patents.
Author : Tanya Saraswat, in case of any query, contact us at Global Patent Filing or write back us via email at firstname.lastname@example.org.
• Patent litigation in India an overview, SS Rana & co., https://ssrana.in/litigation/ip-litigation/patents-litigation/
• Patent litigation in India, strategy and law, NDA, http://www.nishithdesai.com/Content/document/pdf/ResearchPapers/Patent_Litigation_in_India.pdf