RIGHTS OF PATENTEE IN INDIA- ALL YOU NEED TO KNOW

Introduction to the Rights of Patentee

One of the most significant types of intellectual property is the patent. A patent’s term is normally 20 years from the application’s priority date. When a product or technique is protected by a patent, the patentee has the legal right to bar others from creating it, using it, selling it, offering it for sale, or even importing it into the relevant territory. There are several rights of patentee when their innovation is patented as per the Patent Act of 1970 such as Right to Use and Enjoy Patent, Right to Exploit the Patent, Right to Grant or Assign Licenses, Right to Surrender the Patent, Right before Selling, etc.. In order to enforce his rights, an inventor will have to file an application for the grant of a patent to his invention. After the completion of formal considerations and processes, the exclusive rights will be granted to the inventor.

The enforcement of a patent ensures that the intellectual property rights of the inventor are protected. It provides exclusive rights to the patentee/patent holder in respect to the manufacture and sale of the patented product. The patent enthrones the patentee with the total rights to the invention.

The majority of contemporary business owners use patents, which are exclusive monopoly rights, to maximise the commercialization of their intellectual inventions. A patentee may prohibit others from making, using, selling, offering for sale, or importing their patented invention without their permission under the terms of the patent law. If there is any infringement, the patent holder has the right to seek compensation, which may take the form of an account of profits, damages, or an injunction.

However, some actions taken by a third party to make, use, sell, or import a patented invention, even without the patentee’s permission, are not regarded as acts of infringement. For instance, the “Bolar clause” or “Bolar exemption” of Section 107(A) of the Patent Law is a protection against patent infringement that is particularly important for pharmaceutical products. In the famous case of US Roche Products vs. Bolar Pharmaceuticals, it was decided that Bolar had violated the patent by using the proprietary substance for federally required testing.

Who is a Patentee or Patent Holder?

A patentee or patent holder is someone who has been granted a patent (the exclusive right to use or licence an invention). The patent holder enjoys various rights including the right to assign licenses to other persons and authorise them to manufacture and sell the patented item. A patent holder creates a method or item whose exclusive rights and obligations as a patentee are granted to the patent holder. These exclusive rights and obligations of the patentee, however, are not permanent; they may be revoked under certain extraordinary conditions where it is necessary to strike a balance between the interests of the patent holders and those of third parties.

The patent holder enjoys various rights including the right to assign licenses to other persons and authorise them to manufacture and sell the patented item. However, these are not absolute rights and are subject to various constraints and limitations. 

The owner of a patent is entitled to a number of benefits, including the ability to grant licences to third parties and allow them to market and produce the patented product. It is crucial to remember that these privileges do not exist in a vacuum and are subject to a number of restrictions and limits. 

Importance of Patented Invention

The protection of the inventor’s intellectual property rights is guaranteed by patent legal action. It grants the patent proprietor exclusive rights over the sale and production of the patented goods. This right gives the creator the authority to control how and how much the invention may be employed by users. An inventor must submit an application for the invention’s patent grant in order to uphold these rights. The inventor receives exclusive privileges upon the conclusion of official procedures and evaluations. 

What are the benefits conferred upon the Patentee?

The exclusive rights and obligations of the patentee in India are defined by the country’s patent law, which allows the patentee to profit commercially from his or her own invention. These Patentee Rights and Obligations are intended to encourage investment in new innovative ventures and to help inventors understand that their work will be legally guaranteed and protected, making it impossible for anyone to copy their inventions or other works of art.

These governing rights and obligations of the patentee are often granted for a term of 20 years and are also transferable, allowing the patentee to get a licence for the innovation and increase the profit connected with it.

The following rights and obligations of the patentee are provided under the agreement, in accordance with Article 28 of the TRIPS (Trade-Related Aspects of Intellectual Property Rights): –

1. The following exclusive rights should be granted to the patent’s owner by a registered patent: –
   • Using, making, offering for sale, selling, or importing the owner’s product for these purposes is prohibited when the patent’s subject matter is a product.
   • Similarly, when the patent’s subject matter is a process, using, making, offering for sale, selling, or importing the owner’s process is prohibited when the third party does not have the owner’s consent.
2. The right to assign or transmit a patent via succession, as well as the ability to reach licencing agreements, should belong to the patent owner.

A patent grant in India gives the patentee the only right to use the patented invention, make the invention, or use the patented technique associated with the invention. The Patent Act of 1970 outlines certain rights and responsibilities of patent holders.

The following are the various patentee rights:  –

• When a patent is granted for a product, the exclusive right to prohibit any third party from offering, using, creating the product for sale, importing, or exporting the product within the territory of India;
• Where the subject matter of the Patent is a process, the exclusive right to prevent any third party, without patentee’s consent, from offering, using, making for sale, importing, or exporting such products directly obtained from the process in the territory of India;

Furthermore, according to Section 48 of the Patent Act of 1970, the Patentee’s product must not be such that it cannot be patented in India.

The elaborated Rights of Patentee in India are as follows: –

1. Right to Exploit the Patent: – The patent holder in India is granted the right to manufacture, use, sell, and distribute the patented product. If the invention is a manufacturing process, the patentee has the right to delegate the procedure to another person authorised by the patentee. This right can be enforced by the patent holder’s agent.
2. Right to Assign and License: – As per Section 69(5) of the Patent Act 1970, the patent holder is granted the right to assign or grant licences to third parties for the purpose of producing and distributing the patented products. When there are several patent owners for a patented product, all patent owners must agree to issue the licence to a third party as a group. Only after the administrator has properly approved the request, the licence is deemed to be issued. The assignment or licence must thus be in written and filed with the Patent Authority in order to be valid and legitimate. 
3. Right to Surrender the Patent: – After seeking permission from the controller, the patent owner has the right to surrender his patent. The controller then advertises this surrender in accordance with the Indian Patents Act. Those interested in acquiring patent ownership can then approach the controller. The controller investigates the claims of the parties and, if necessary, surrenders ownership.
4. Right Before Sealing: – According to Section 24 of the Indian Patents Act, a patent is sealed from the date of notification for acceptance to the date of notification of acceptance. The patentees right begins when the notification of acceptance is presented. A patent is protected from the date of the notification for approval to the date of the notification’s adoption, in accordance with Section 24 of the Indian Patents Act. Following the presentation of the notice for acceptance, the patentee’s entitlement is applicable. 
5. Right to Sue For Infringement: –The Patentee has the right to sue for patent infringement in District Court, which has jurisdiction to hear the case. When any of the rights of the patent holder is violated, then it is termed as patent infringement. This is to mean that if the patented invention is used, manufactured or sold for commercial purposes by any person, then it will be accused of patent infringement. In case of violation of patentee’s rights, the patentee can approach either the district court or a high court. If the person is proven guilty of infringement, the courts will either grant permanent injunction or damages or both.
6. Right to Use and Enjoy Patent: – The Patentee has the exclusive right to exercise, make, use, convey, or offer the patented substance or article in India, as well as to practise or use the process or techniques associated with the invention. Such rights may be exercised by the Patentee himself/herself or by his/her licensees or agents.
7. Right to Apply for The Patent of Addition: – This provision is provided in Section 54 to 56 of the Indian Patents Act. This provision provides for the modifications in the existing invention. In such a case, the patent holder is granted the right to the modified invention after the notification of the acceptance comes out. Once the notification is presented, the owner is provided with the same rights as provided to the previous patent.

What are the limitations of patent rights of patentee?

The Limitation of Patent Rights of Patentee are as follows: –

1. Limitation on Private and Non-Commercial Use: – Under this limitation, the patent holder is restricted from using the invention for private purposes or asserting a monopoly over commercial activity. If the government is of the opinion that the patent holder is not using the patented invention for profit, then it can grant a compulsory licenseto a third party. Section 84 and Section 92 of the Patents Act provides for compulsory license. It can be invoked when the patented item is not available to the general public at affordable prices. This is generally done in cases of pharmaceutical drugs. Another provision in the patents act relating to the limitations on private and commercial use is provided in Section 85 of the act. It provides for revocation of patents by the controller in case of non-use.
2. Exception of Experimental/Scientific Use: – This limitation is provided under sub-section 3 of Section 47 of the act.  This exception provides that the patented process/product can be used by any person for the purpose of undertaking any scientific experiment or carrying out research. The introduction of this exception was important to protect those conducting ‘bona fide’ research and experiments. It permits the third parties to conduct research using the patented material without being accused of infringing the patent holder’s rights.
3. Exhaustion of Patent Rights: –This provision says that once the patented product is sold in the market, the patent rights of the inventor gets exhausted. According to this limitation, the patent holder loses his control over the product after the first unrestricted sale of the invention takes place. The rationale behind the formulation of this limitation was that once the patent holder has sold his invention in the market, the purpose behind granting a patent for the particular product would get defeated. This implies that the patent holder has given the right to manufacture, use and sell the patented product to another person, in turn, losing his own exclusive rights.

Case Laws under Rights of Patentee in India

1. Bayer Corporation vs Union Of India & Ors. on 22 April, 2019
   • Facts of the Case: – The Indian Patent Office granted India’s first compulsory license to Natco Pharma Ltd. in public interest. The license was granted for the production of the drug Nexavar which was originally produced by Bayer Corporations. There were certain restrictions put on the manufacture of the drug. The manufacture could only be done inside the premises of Natco Pharma Ltd. and the product could not be used for export purposes. Bayer Corporation filed an appeal in the Court.
   • Judgment of the Case: – The Court, in this case, had decided that the grant of the compulsory license in this case was valid since it was necessary for public interest and it was made available at nominal prices.
2. Symed Labs vs. Glenmark Pharmaceuticalson 19 January, 2015
   • Facts of the Case: – This case was filed by symed labs against Glenmark Pharmaceuticals for infringement of two of its patents. The Court, in this case, held that there was prima facie evidence against Glenmark that they have misused Symed’s patented products for manufacturing and selling in the market. It was due to this misuse that symed has suffered irreparable loss.
   • Judgment of the Case: –The Court, as a result, ordered an interim injunction on the sale of the patented product by Glenmark. The Court also held that in this particular case, providing damages would not reverse the loss suffered by the plaintiff. Therefore, providing protection to the patented process was inevitable to safeguard Symed’s patent rights.

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