‘The patent law recognizes the exclusive right of a patentee to gain commercial advantage out of his invention’ justify the statement illustrating the rights and principle behind it.’
To begin we better know what is patent. A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, and may be a product or a process.
The procedure for granting patents, requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims that define the invention. These claims must meet relevant patentability requirements, such as novelty and non-obviousness. The exclusive right granted to a patentee in most countries is the right to prevent others from making, using, selling, or distributing the patented invention without permission.
Under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights, patents should be available in WTO member states for any invention, in all fields of technology, and the term of protection available should be a minimum of twenty years. Nevertheless, there are variations on what is patentable subject matter from country to country.
The word patent originates from the Latin patere, which means “to lay open” (i.e., to make available for public inspection). More directly, it is a shortened version of the term letters patent, which was a royal decree granting exclusive rights to a person, predating the modern patent system. Similar grants included land patents, which were land grants by early state governments in the USA, and printing patents, a precursor of modern copyright.
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. Some other types of intellectual property rights are also called patents in some jurisdictions: industrial design rights are called design patents in the US, plant breeders’ rights are sometimes called plant patents, and utility models and Gebrauchsmuster are sometimes called petty patents or innovation patents.
The additional qualification utility patent is sometimes used (primarily in the US) to distinguish the primary meaning from these other types of patents. Particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.
In other words, a patent is a privilege granted by the state to the first inventor of any new manufacture or invention that she and her licensees shall have the soul right, during the term of sixteen years, of making and vending such manufacture or invention. In England, the Patents and Designs Act governs actions relating to patents; in Pakistan the Patents and Designs Act applies.
The subject matter of patent must be a new manufacture or art or industry, for if there is no new manufacture or art, or industry or production there is no matter and therefore no invention. It is sufficient that the invention is new within the realm, so that no objection can be made that it was already known abroad or in the colonies. The two features necessary to the validity of a patent are novelty and utility but the real taste is the novelty of the invention. Novelty is essential, for otherwise there would be no benefit given to the public and consequently no consideration moving from the patentee.
The patentee may use her rights herself or assign them or grant licensees. A licensee cannot sue from infringement.
In 500 BC, in the Greek city of Sybaris (in what is now southern Italy), “Encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year.”
The Florentine architect Filippo Brunelleschi received a three-year patent for a barge with hoisting gear, that carried marble along the Arno River in 1421. In 1449, King Henry VI granted the first English patent with a license of 20 years to John of Utynam for introducing the making of colored glass to England.
Patents in the modern sense originated in 1474, when the Republic of Venice enacted a decree that new and inventive devices, once put into practice, had to be communicated to the Republic to obtain the right to prevent others from using them.
England followed with the Statute of Monopolies in 1624, under King James I, which declared that patents could only be granted for “…projects of new invention.” During the reign of Queen Anne (1702–14), lawyers of the English Court developed the requirement that a written description of the invention must be submitted. The patent systems in many other countries, including Australia, are based on British law and can be traced back to the Statute of Monopolies.
In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt.
In France, patents were granted by the monarchy and by other institutions like the “Maison du Roi”. The Academy examined novelty. Examinations were generally done in secret with no requirement to publish a description of the invention. Actual use of the invention was deemed adequate disclosure to the public. The modern French patent system was created during the Revolution in 1791. Patents were granted without examination since inventor’s right was considered as a natural one.
In the United States, during the colonial period and Articles of Confederation years (1778–89), several states adopted their own patent systems. The U.S. Constitution authorizes the American patent system in Article One, Section 8(8) which states:
The first Congress adopted a Patent Act in 1790, and the first patent was issued under this Act on July 31, 1790 (to Samuel Hopkins of Vermont for a potash production technique).
Privy Council on validity of ambiguous specification-Noranda Mine’s cases:
Holding that the specification of patent should be clear, the privy council made following exegesis of law in Mineral separation North American corp. vs Noranda Mines.
It is the duty of a patentee to state clearly and distinctly either in direct words or by clear and distinct reference, the nature and limits of what she claims. If she uses language which, when fairly read, is avoidably obscure or ambiguous the patent is invalid, whether the defect be due to design, or to carelessness or to want of skill. Where the invention is difficult to explain, due allowance will, of course, be made for any resulting difficulty in the language. But nothing can excuse the use of ambiguous language when simple language can easily be employed, and the only safe way is for the patentee to do his best to be clear and intelligible.
Proceedings in respect of patent and design lie in district court:
Legal proceedings in respect of a patent and a design have been placed on the same footings and there is no distinction in this court to which suits lie. The suit in respect of a design thus lies exclusively to the district court that is the district judge court. The court elaborated this point in the following words ‘section 36 of the act prescribes that where any person claiming to have an interest in a patent threatens any other person with any legal proceedings or liability in respect of any infringement of patent the person aggrieved may bring a suit in a district court . A suit in case of groundless threats of legal proceedings in the case of registered design thus lies to the district court. If such a suit lies to the district judge, a suit by the proprietor of a design under section 53(2) of the patents and designs act for recovery of damages and injunction etc, must also lie to the district court.’
A patent privilege may be infringed if any person without the license of the patentee, makes, uses, exercises or vends the invention within the prescribed limits. The person infringing the patent will be liable to an action for damages and an injunction. the government is bound by patent statutes, but provision is made for the use of inventions by Government departments on exceptional terms.
The plaintiff is entitled to recover such an amount of damages as will fairly compensate her for the pecuniary loss actually sustained by the patentee.
The court may grant interlocutory injunction in support of a patent right. In issuing an injunction the court has to see whether what is done takes from the patentee the substance of his invention-the ‘pith and marrow’
Temporary injunction may be granted only where patent or design registered in distant past:
In granting a Temporary injunction against violation of a design, the same principles should apply as are applicable in the case of a violation of patent , that is that the patent , is primafacie valid or it has been enjoyed for many years without dispute . Temporary injunction will not be granted if the registration is recent.
Who can apply for a patent?
1) An application for a patent may be made by any person whether she is a citizen of Bangladesh or not, and whether alone or jointly with any other person.
2) The application must be made in the prescribed form, and must be left at the patent office in the prescribed manner.
3) The application must contain a declaration to the effect that the applicant is in possession of an invention, where of she, or in the case of a joint application one at least of the applicants, claims to be the true and first inventor or the legal representative or assign of such inventor and for which she desires to obtain a patent, and must be accompanied by either a provisional or complete specification and by the prescribed fee.
4) Where the true and first inventor is not a party to the application, the application must contain a statement of his name, and such particulars for his identification as may be prescribed, and the applicant must show that he is the legal representative or assign of such inventor.
Grant and sealing of patent:
1) if there is no opposition, or, in case of opposition, if the determination is in favor of the grant of patent, a patent shall, on payment of the prescribed fee, be granted, subject to such conditions (if any) as the thinks expedient, to the applicant, or in the case of a joint application to the applicants jointly, and the controller shall cause the patent to be sealed with the seal of the patent office.
Patent law in Bangladesh (Bangladesh perspective):
Intellectual Property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. There are two categories of intellectual property: Industrial Property and Copyright. Industrial property includes inventions (patents), trademarks, industrial designs, and geographical indications of source; and Copyright includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing acts in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. Rights relating these properties are collectively called Intellectual Property (IP) Rights. All over the world, national statutes protect these rights. In Bangladesh, protection of industrial property comes under the purview of Ministry of Industries. On behalf of M/O Industries Department of Patents, Designs & Trademarks (DPDT) administers all the activities relating to industrial property. DPDT started its work as a department from 20.3.2004.
Registrar is the head of this department. He is a joint secretary of the govt.
DPDT has 4 wings; each is headed by a Deputy Registrar. The wings are:
a. Patents & Designs Wing,
b. Trademarks Wing,
c. WTO and International Affairs Wing,
d. Administration & Finance Wing.
It has 9 sections, each headed by one Assistant Registrar.
Following organizational chart shows the approved work force of the DPDT:
Location of the Department:
The DPDT is situated on the fifth and sixth floor of the Ministry of Industries, 91, Motijheel Commercial Area, Dhaka-1000.
Following IP related laws are prevailing in Bangladesh:
- The Patents and Designs Act -1911;
- The Trademarks Act – 2009;
- The Copyrights Act – 2000 (Amended in 2005).
The following IP rights are protected under these laws:
- A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. Under the Patents and Designs Act -1911 patents are granted. Patents provide 16 years protection from the date of filing of the application.
- An industrial design is the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color. Industrial designs are protected under The Patents and Designs Act -1911. Registration of assign is given for 5 years. It could be renewed twice; each renewal remains valid for 5 years.
- A trademark is a distinctive sign which identifies certain goods or services as those produced or provided by a specific person or enterprise. The trademarks system helps consumers identify and purchase a product or service because its nature and quality, indicated by its unique trademark, meets their needs. A registered trademark provides protection to the owner of the mark by ensuring the exclusive right to use it to identify goods or services, or to authorize another to use it in return for payment. In Bangladesh trademarks and service marks are registered under The Trademarks Act- 2009. Registration provides 7 years protection; it can be renewed every after 10 year on payment of renewal fees
- Copyrights are protected for original intellectual work of literature, art, music, software, etc. under The copyrights Act – 2000 (Amended in 2005). Copyright exist upto 60 years after the death of copyright owner.
The Department of Patents, Designs and Trademarks (DPDT) administers all the above mentioned IP rights except copyrights.
In brief, the patent law is an exclusive right of the patentee to gain commercial advantage out of his invention. In the purview of the above discussion, no other people can use the patentee’s invention for commercial use without the patentee’s permission.
TRADE MARKS, MECHANDISE MARKS, & PATENTS & DESIGNS BY MR M FARANI BARRISTER-AT-LAW OF LINCOLN’S INN