Working of Patents – Patent Registration in Coimbatore

Section 83: Working of patents

Patents are granted to encourage inventions and to secure that the inventions are working in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay. Patents are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article.

The protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

Patents granted do not impede protection of public health and nutrition and should act as an instrument to promote public interest especially in sectors of vital importance for socio-economic and technological development of India. Patents granted do not prohibit Central Government in any way taking measures to protect public health.

The Patent right shall not be abused by the patentee or person deriving title or interest on patent registration in Coimbatore from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology. Patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.

Patented inventions are worked on a commercial scale in the territory of India without undue delay and to the fullest extent that is reasonably practicable. The interests of any person for the time being working or developing an invention in the territory of India under the protection of a patent registration in Hyderabad are not unfairly prejudiced.

Thus, it is mandatory to a patentee and licensee to submit a statement of commercial working of the patented invention in India to the Controller. Such statements are needed to be submitted to Indian Patent office in respect of every calendar year within three months of end of each year. Controller General may disclose those statements for public.

Section 146: Information to Controller relating to working of patent invention

The Controller may in writing give notice to the patentee anytime during the continuation of the patent, to furnish him information regarding to the extent to which the patentable invention has been commercially worked in India. The patentee must provide such information within 2 months from the date of such notice to the Controller or within such further time as the Controller may allow.

Section 122: If any person denies or fails to provide such information, then he shall be found guilty and be punishable with fine, which may be extending to ten lakh rupees. If any person provides such information which is false and not appropriate in support of the invention and he either know or has reason to believe that it is false then he shall be punishable too with imprisonment which may extend up to Six months or fine, or with both.

Compulsory licensing

It is an authorization given by the Government to a person to make use of a patent registration in Kochi without the permission of the patent holder. This evidently works against the will of the patent holder but compulsory licenses are considered as a prerequisite in certain cases like that of national emergency, health crisis and like. Even TRIPS allows flexibilities in the form of compulsory licenses on the attainment of certain necessities. There are certain provisions under Indian Patent Act devoted to the grant of compulsory licenses.

To make sure that the patents do not hinder the protection of public health and nutrition and the patent rights are not abused by the patentee, the Patent Act provides measures by way of compulsory licensing (CL). Therefore CL balances between two different objectives, i.e. rewarding patentees for their invention and making the patented products, particularly pharmaceutical products, available to large population in developing and under developed countries at a cheaper and affordable price.

An application for grant of a compulsory license may be made under the following provisions:

i. Section 84

ii. Section 91

iii. Section 92

iv. Section 92A of the Patent Act.

Patent misuse – Section 84: Compulsory license

Any person interested may make an application to the Controller for grant of Compulsory License for a patent registration after the expiry of three years from the date of grant of the patent on the following grounds:

a. That the reasonable requirements of public with respect to the patented invention have not been satisfied, or

b. That the patented invention is not available to the public at reasonably affordable price, or

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

Such an application may also be made by the licensee. Compulsory Licenses are granted as per the following grounds

a. In order to prevent the abuse of patent registration as a monopoly;

b. Make a way for commercial exploitation of the patented invention by an interested person; and

c. Address the public health concern in India.

d. No person shall be stopped from alleging the grounds mentioned above by reason of any admission made by him in the license or otherwise or by reason of his having accepted such a license. In considering such an application, the Controller shall take into account;

e. The nature of the invention i.e. the complexity of the technology.

f. The time that has elapsed during which the patented invention is not available at a reasonably affordable price, or being produced in India.

g. The ability of the applicant to work the invention since sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention; public advantage.

h. The capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;

i. The potential of the applicant to use the invention in the favour of public.

j. As to whether the applicant has made efforts to obtain a license from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit. Reasonable period shall be constructed as a period not ordinarily exceeding a period of six months. However, these circumstances shall not be applicable in case of national emergency or other circumstances of extreme urgency or in case of public non-commercial use or on establishment of a ground of anti-competitive practices adopted by the patentee.

Section 84(7): Reasonable requirements of the public

The reasonable requirements of the public shall be deemed not to have been satisfied

i. If, by reason of the refusal of the patentee to grant a license or licenses on reasonable terms.

ii. An existing trade or industry or the development thereof or the establishment of any new trademark or industry in India or the trade or industry of any person or class of persons trading or manufacturing in India is prejudiced; or

iii. The demand for the patented article has not been met.

iv. A market for export of the patented article thereof or the establishment of any new trade or industry in India or the trade or industry in India or the trade or industry of  any person or class of persons trading or manufacturing in India is prejudiced; or an adequate extent or on reasonable terms; or manufactured in India is not being supplied or developed, or activities in India is prejudiced; or

v. The establishment or development of commercial activities in India is not being supplied or developed.

vi. If, by reason of conditions imposed by the patentee upon the grant of licenses under the patent or upon the purchase, hire or use of the patented article or process, the manufacture, use or sale of materials not protected by the patent, or the establishment or development of any trade or industry in India, is prejudiced; or

vii. If the patentee imposes a condition upon the grant of licenses under the patent to provide exclusive grant back, prevention to challenges to the validity of patent registration in Chennai or coercive package licensing; or

viii. If the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent or is not being so worked to the fullest extent that is reasonably practicable; or

ix. If the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by-

a. The patentee or persons claiming under him; or

b. Persons directly or indirectly purchasing from him; or other persons against whom the patentee is not taking or has not taken proceedings for infringement.