The patent law protects the right of a patentee by sufficing appropriate remedies. Explain the statement.
1. Introduction
A new idea can be protected in various ways among them patent is a strong and effective way to protect the right of patentee. Some protection, such as copyright and design right, generally comes into force automatically when a new idea is created. Stronger protection, involving a patent or a registered design has to be applied and paid for. In some cases, more than one form of protection may be appropriate, for example to protect both the working of a new idea and its appearance. When putting an idea on the market, it is important to make sure that someone else’s protection is not being infringed by this action. Anyone can check whether an invention has already been patented by paying for a computer search of existing patents or not.
Throughout this report we could know how patentee can protect his right through patent.
2.0 Definition of Patent Law
Patent law is a specific area of law that encompasses the legal regulation and specific intellectual property rights known as patent rights. A patent is a kind of proof which works as an exclusive rights granted by a government to an inventor or applicant for a certain amount of time. It is a legal document defining ownership of a particular area of new technology. Patent also describes an invention and creates a legal situation. Patents are granted in over 150. The right granted by a patent excludes all others from making, using and selling an invention or products made by an invented process. In modern usage, the term patent usually refers to the right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter.
2.1 Types of Patents
First elements of a modern patent system begin in England. Patents for a dredging machine and the making of soap, alum, and saltpeter were granted. There are three types of patents.
· Utility patents: Utility patent is consider of those patent where inventors discover any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. It generally permits its owner to exclude others from making, using, or selling the invention for a period of up to twenty years from the date of patent application also referred to as "patents for invention."
· Design patents: Granted to one who invents or reproduces any new or distinct variety of plant. Design patent issued for a new, original and ornamental design for an article of a manufacture it permits its owner to exclude others from making, using or selling the design for a period of fourteen years from the date of patent grant.
· Plant patents: Plant patent issued for a new and distinct invented or discovered product. Plant permits its owner to exclude others from making using or selling the plant for a period of up to twenty years from the date of patent application filling.
2.2 Conditions of Patentability
An invention must meet several criteria if it is to be eligible for patent protection. ThisInclude, most significantly, that the invention must consist of patentable subject matter, theInvention must be industrially applicable. Patent must be new and exhibit a sufficient inventive step. The disclosure of the invention in the patent application must meet certain standards. [1]
A patent may be granted only for an invention which satisfies the following conditions, that is to say-
i. The invention is new
ii. It involves an inventive step
iii. It is capable of industrial application
iv. The grant of a patent for it is not excluded by section 4 of this Act.
v. An invention may be a product or a process.
The following are exclusion from patentability not inventions for the purposes of this Patent Act that are:
i. Contrary to well-established natural laws
ii. an invention the use of which would be contrary to law or morality
iii. an invention the use of which would be injurious to public health or environment
iv. an invention which is a substance capable of being used as food or medicine
v. a discovery, scientific theory or mathematical method
vi. a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever
vii. a rule or method for doing business, playing games, performing a mental act or program for a computer.
3.0 Rights of Patentee
The exclusive rights of the patentee last only during the term of the patent. Once the term of the patent expires the patentee can no longer claim exclusive rights. When an invention has been patented by two or more persons as co- owners all of them have equal share of the patent. They may make an agreement between themselves. A co- owner of a patent cannot assign or license any share in the patent without the consent of the co-owner. When an invention has been patented by two or more persons as co- owners all of them have equal share of the patent. They may make an agreement between themselves. A co- owner of a patent cannot assign or license any share in the patent without the consent of the co-owner. The term of exclusive rights of the patentee begin from the date of advertisement of the acceptance of a complete specification and except the rights to file a suit against infringement. The patentee has the rights to file in court if his rights have been infringed.
Under the prevailing Indian Patents Act, 1970, a patentee has the right (Section-48) to exclude others from making, using, or selling a patented invention. The patentee may choose to obtain sole benefit of the patent by withholding the practice of the invention from others.
The patentee can enjoy the right for 20 years from the date on which the patent application has filed. However, the patentee is liable to practice his patented product or process within the Indian Territory and the patentee will ensure that the patented product or process is being accessed sufficiently by the common public in affordable price.
There is a common misconception that a patentee gets monopoly right from the Government when his application is matured into patent. However, a patent does not provide a monopoly right to the patentee; rather, it provides a right to keep others from making, using, and selling the patented invention till the end of its term. Thus the patent awarded to the patent applicant, can be assumed as a negative right.
3.1 Term of patent.
A patent granted under this Act shall be treated for the purposes of the following provisions of this Act as having been granted, and shall take effect, on the date on which notice of its grant is published in the journal and, subject to subsection below shall continue in force until the end of the period of 20 years beginning with the date of filing the application for the patent or with such other date as may be prescribed.
1) A rule prescribing any such other date under this section shall not be made unless a draft of the rule has been laid before, and approved by resolution of, each House of Parliament.
2) A patent shall cease to have effect at the end of the period prescribed for the payment of any renewal fee if it is not paid within that period.
3) If during the period of six months immediately following the end of the prescribed period the renewal fee and any prescribed additional fee are paid, the patent shall be treated for the purposes of this Act as if it had never expired, and accordingly[2]
4) Anything done under or in relation to it during that further period shall be valid
5) An act which would constitute an infringement of it if it had not expired shall constitute such an infringement
6) An act which would constitute the use of the patented invention for the services of the Crown if the patent had not expired shall constitute that use.
3.2 Termination of right to patent after grant.
After a patent has been granted for an invention any person having or claiming a proprietary interest in or under the patent may refer to the comptroller the question—
(a) Who is or are the true proprietor or proprietors of the patent.
(b)Whether the patent should have been granted to the person or persons to whom it was granted
(c)Whether any right in or under the patent should be transferred or granted to any other person or persons.
The comptroller shall determine the question and make such order as he thinks fit to give effect to the determination. Without prejudice to the generality of subsection above, an order under that subsection may contain provision directing that the person by whom the reference is made under that subsection shall be included whether or not to the exclusion of any other person among the persons registered as proprietors of the patent, directing the registration of a transaction, Instrument or event by virtue of which that person has acquired any right in or under the patent.
(a) Granting any license or other right in or under the patent;
(b) Directing the proprietor of the patent or any person having any right in or under the patent to
do anything specified in the order as necessary to carry out the other provisions of the order.
4.0 Rights Conferred by Patent
A patent shall confer on its owner the following exclusive rights:
(a) Where the subject matter of a patent is a product, to restrain, prohibit and prevent any unauthorized person or entity from making, using, offering for sale, selling or importing that product;
(b) Where the subject matter of a patent is a process, to restrain, prevent or prohibit any unauthorized person or entity from using the process, and from manufacturing, dealing in, using, selling or offering for sale, or importing any product obtained directly or indirectly from such process.
Patent owners shall also have the right to assign, or transfer by succession the patent, and to conclude licensing contracts for the same. (Sec. 37, R.A. No. 165a). [3]
If a patent is lost or destroyed, or its non-production is accounted for to the satisfaction of the Registrar, the Registrar may at any time, on payment of the prescribed fee, seal a duplicate thereof. You could consider protecting different aspects of your product or process using one or more of the following.
· Registered design
· Registered trade marks
· Unregistered design right and copyright
5.0 Limitations of Patent Rights
The owner of a patent has no right to prevent third parties from performing, without his authorization, the acts referred to in Section 71 hereof in the following circumstances:
· Using a patented product which has been put on the market in the Philippines by the owner of the product, or with his express consent, insofar as such use is performed after that product has been so put on the said market.
· Where the act is done privately and on a non-commercial scale or for a non-commercial purpose: Provided, that it does not significantly prejudice the economic interests of the owner of the patent.
· Where the act consists of making or using exclusively for the purpose of experiments that relate to the subject matter of the patented invention.
6. Conclusion
Throughout the whole discussion it can be said that for patentee that patent law is the most appropriate to protect the idea of innovator, Even after having very few problems mainly patentee becoming benefited by doing patent. Throughout the report we could see that how patent solve the remedies of patentee. So the statement is true undoubtedly that patent law protects the right of a patentee by sufficing appropriate remedies.
Reference
· WIPO Intellectual Property Handbook: Policy, Law and Use. Chapter 2: Fields of Intellectual Property Protection WIPO 2008.
· U.S. patent and trademark office technology assessment and forecast data base(1 June 2000)
· http://www.slideshare.net/altacitglobal/types-of-patents
· http://www.slideshare.net/altacitglobal/types-of-patents
· http://www.uspto.gov/inventors/patents.jsp#heading-1
· http://www.lawcommissionbangladesh.org/reports
· http://trademarks.ipophil.gov.ph/tmonline/ipcode/PatentsChapter8.htm
[1] http://www.uspto.gov/inventors/patents.jsp#heading
[2] See Parchomovsky & Wagner, supra note 17, at 46 (“Since 1994, IBM has amassed over 25,000 U.S. patents, far more than any other company, each year ranking first on the USPTO’s list of top patent earners.”);
[3] http://www.lawcommissionbangladesh.org/report