PATENT: Rights and Remedies under a Different Route

Abstract: A patent is a right granted by the government according to the law to the inventor for his new creation that permits the inventor to have an exclusive right for excluding others from selling, making, or using that innovation for a while. An instrument by which right is to be granted that is known as a patent. A patent is granted to protect the innovative idea, uniqueness of the thing by the innovator which is useful to society. To whom the patent is granted is called the patentee. When the period for which exclusive right is granted in form of a patent to the innovator is expired, innovation can be used by any person

Introduction

For innovation to meet all requirements for a patent, it must be both “novel” and “non-self-evident.” Development is a novel on the off chance that it is unique in relation to other comparative creations in at least one of its parts. It likewise should not have been freely utilized, sold, or licensed by another creator inside a time of the date the patent application was recorded. This standard mirrors the open approach preferring speedy revelation of innovative advancement. Example:-

  1. PC programming and equipment;
  2. Substance equations
  3. plants, and creatures;
  4. Medications;
  5. Furniture plan;
  6. Gems;
  7. Music Instruments.

METHODS TO APPLY FOR PATENT

There are three routes to apply for a patent which are:

  1. Direct route: inventor has to file an application for the patent in all countries at the same time to protect its invention.

  2. Paris route: Application has to be filed under the Paris convention in the national country than after applying, the innovator has a period of 12 months for applying to different countries in which he wants to register its patent.

  3. Patent cooperation treaty route: there are two ways for filing an application under the PCT route. At first, when the inventor file application under the Paris convention and having 12 months for filing an application under other countries but the inventor was failed to apply within 12 months than inventor file a single application under PCT for all the countries to which he want to register his invention and get a further extension of 18 months.

In another, the inventor has directly filed a single application under the PCT for all the countries to which he want to register his invention and get 30 months of a time period.

Encroachment & its kinds

At any time when an inventor thinks somebody has used their protected patent without his consent, the patentee may bring a claim against the infringer. In the event that the court concurs, it might grant the patent holder costs, lawyer’s charges, damages in a sum equivalent to a loss suffered by the patentee, and injunctions. A suit for encroachment can waste so any time and expensive, so encroachment cases regularly are settled.

In India, patent encroachment regarding a patent without the earlier authorization from the patent holder is a restricted act under the law. A patent holder can give authorization, whenever required, as a permit. A patent encroachment is typical regarding the utilization or sale of the new creation. In a few nations, the utilization of innovation is necessary so as to file a case of patent encroachment.

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There are two kinds of infringement as referenced underneath:

  • Direct infringement – happens when an item is generously near any licensed item or for a situation where the advertising or business utilization of the creation is done without the authorization of the proprietor of the innovation.
  • Indirect infringement – happens when some measure of misleading or unintentional encroachment occurs with no intention of encroachment.
 REMEDY FOR ENCROACHMENT

At whatever point there is any violation of the exclusive rights of the patentee, the rights of the patentee are protected or secure by the law in which the court provides remedies to the patentee. The patentee needs to initiate a suit for encroachment. The reliefs which might be profited in such a suit are:

1. Interlocutory/break directive/interim injunction

2. Damages or record of benefits

3. Lasting directive/permanent injunction

Conclusion

Section 104 of the Patent Act 1970 gives that a suit to encroachment can’t be organized in any court which is lower than the District Court which having authority or jurisdiction to attempt the suit other than High Court, in a proper circumstance. At the point when a suit for encroachment has been instituted in a high court and District court and the litigants make a counter case for the renouncement of the licenses, the suit is transferred to the High Court for a decision since the high court has the jurisdiction to attempt instances of renouncement. Further, section 104A of the Patent Act 1970 accommodates the burden of proof in the event of suits concerning encroachment.

From the time of a patent being fixed, a suit for encroachment can be founded. Further, during the period where the restriction is being chosen, the candidates can’t initiate a suit for encroachment. Be that as it may, the damages supported because of the encroachment, for example between the date of distribution of complete determination and the date of grant might be guaranteed in an alternate suit.

In a circumstance where the term of the patent has lapsed and the encroachment happens during the said term of the patent, a suit can be initiated even after the expiry of the term. Further, for a situation where a patent is acquired illegitimately by an individual and is allowed to the valid and first designer, no suit for encroachment can be authorized before the time of such grant to the valid and first creator.

Also Read: Enforcement of Intellectual Property Rights under the TRIPS Agreement

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