Patent is a category of intellectual property right. It is a grant by the government or the sovereign of the country to one or more individuals for certain number of years, the sole rights of making, selling, or using the invention for which the patent has been granted and the right to, by which the holders of such a right, for authorizing others to do so, under a contract or license. According to Cambridge, it can be defined as “the official legal right to make or sell an invention for a particular number of years.” It is a legal right to make or sell an invention.

A patent provides protection to the owner. It can prevent others from misusing the original work of an individual or organization. If a person uses it without the permission of the inventor or owner of patent, it can be sued in the court of law. [i]Patent is derived from the Latin word ‘patere’ which means ‘to open’. For the grant of patent. The inventor must disclose full details of its invention.

[ii]The owner of the patent is called patentee. It is the person or institution whose name is entered in the register of patents for a particular invention. It also includes the name of the assignee, to which the original owner has granted the right.

[iii]Articles that can be Patented

To be eligible for patent, article or things must fulfill certain principles.

Innovative-

Things or article to be patented must be new. Registration of patent is based on the principle of novelty. Such article should be new not only in the country where it is patented. But also, such kind must not have patented anywhere in the world. The invention must be revolutionizing. If something new is created, it is subject to patenting.

In [iv]Diamond v. Chakrabarty 447 U.S. 303 (SCOTUS 1980), this famous case was decided in US supreme court. The question arises that whether the organisms that are genetically modified can be patented or not. Chakrabarty who worked in the genetics department claim to invent organisms after doing some modifications in genetics. In lower court judgement was given against him. He appealed in supreme court, the court concluded that any invention of any process, machine, or composition of matter which is new and has a useful purpose can get patented. The decision was passed in favor of chakrabarty in appeal.

In [v]Association for Molecular Pathology v. Myriad Genetics, this case discussion revolves around the fact that unnaturally created DNA and which is isolated naturally can be patented or not. The court held that unnaturally created DNA, cDNA follows the nucleotide series of the natural DNA segment and retains its obviously occurring exons, the cDNA fulfills the norms of novelty and are subject to be patented.

Any article or thing is not considered as new if it is already published or disclosed to others. In some countries grace period of 6 months- 12 months is provided after that invention is being demonstrated or known too public. Since ancient times, many benefits of turmeric are recognized. In India, most of Ayurveda medicines include turmeric as their main ingredient. When in foreign country benefits of turmeric as an invention was granted patent, after detailed review it was withdrawn.

Usefulness-

Such invention should be useful to pass the patent applicability test. If a refrigerator cannot keep food fresh or water cool, it is of no use. If a helicopter cannot fly it is of no use either.

Non-Obvious-

The invention must fulfill the criteria of being non-obvious. It should be something creative, involves state of art. Merely combining two items or changing the combination ratio is obvious. Invention of light, telephone have passed the non-obvious test.

First one to invent-

In some countries like Australia, USA, Canada etc., there is another ground through which patent application can be accepted or rejected. In USA, the person who first invent is granted patent right, rather than one who has first applied for. Condition being the person who is the inventor must keep the laboratory note which acts as the evidence.

A certain procedure should be followed in preparing a laboratory notebook. They are- the laboratory notebook should be hardbacked so that it cannot be tampered or corrupted. Each laboratory notebook must be numbered. It should be properly dated and signed by the inventor. The date of commencement of invention must be written and the names of coworkers must also be mentioned. Other such matters as may be prescribed by the legislation of the nation.

[vi]What cannot be Patented?

• A mere discovery
• A mathematical or business or scientific method or formulae
• literary, dramatic, or artistic work
• a meager scheme or rule of performing a mental act, method, or game
• a computer programs
• an invention which is contrary to any natural laws.

In [vii]Alice v. CLS bank, the US supreme court decided in 2014 regarding patent eligibility of a particular subject matter. Whether certain claims about a computer implemented electronic escrow service for assisting financial transactions covered abstract ideas are eligible for patent protection. The decision ended with these observations by the court- a mere instruction to implant an abstract idea on a computer is not eligible to be registered as a patent., stating an abstract idea while adding the words ‘apply it’ is not enough to be subject to patent.

[viii]Procedure to be followed in UK for Patenting an Invention

Patent right is available to an individual or organization for a period of 20 years from the date when patent was granted. If anyone wants to register patents, it must apply to UK Intellectual Property office. After proper verification and assessment by the officials, patent will be granted within 4 years of its application date. It can even be issued at an earlier date.

Application must contain name, address, request for a patent and description of invention. After application is filed, intellectual property authorities issue receipt against the same. The inventor can use the invention from the date of filing. After one year of application filling, the inventor must provide detailed information about the invention, the kind of protection it is seeking and a request for search with a fee.

The IP authorities after receiving search request will involve into detailed investigation and research into various journals, channels, internet platforms all over the world. To verify whether the proposed invention is new and whether it is similar to any type of invention which is already patented in any part of the world. The patent right will be granted or not depends upon the outcome of the search.

After through analysis if the authorities found that the invention is new and unique, they will grant the patent right to the inventor, by issuing a certificate in its name and publishing the same in IP office journal. Normally it took 4 years for the patent right to be granted by the authorities. But if fees are paid on time and timely and healthy communication takes place between the applicant and the authorities, the patent can be issued within 18 months if the invention is not a complex one. Once patent has been granted annually the inventor file fees with the IP authorities to keep the patent in force.

[ix]Enforcement of patent right

Patent right provides a protection to the original inventor to safeguard its invention from being used by someone else. If without the permission of the original owner, work is used by another individual or organization in its own name, it is known as infringement. The owner can sue for damages and remedy of injunction is also available with the plaintiff. If the patent is not registered, the inventor cannot claim for damages in infringement. In [x]eBay Inc. v. MercExchange, LLC (SCOTUS 2006), the court held that if a patent is infringement automatic injunction cannot be issued. The plaintiff must prove certain things, that he has suffered an injury, other remedies available are insufficient to cover such injury etc.

Infringement case cannot be filed against government in some countries like USA. In [xi]Schillinger v. the united states, 155 U.S. 163 (1894), the court held that no one could bring a patent infringement case against the U.S. government. the doctrine of sovereign immunity provides that the United states cannot be sued without its consent.

Frequently Asked Questions

How can patent be registered?

Before applying for registration, it meets the criteria as per the patent act- new, unique, non-obvious, enabling etc. the application must be filed in prescribed forms. The application will be thoroughly checked by the authorities. Inspection will be properly assessed by the authorities. After payment of fees, if the authorities feel that the applicant complies with all the provisions of the act. The patent will be granted.

What is the term of patent?

Patent is usually registered for a period of 20 years after that it can be applied for its renewal, 6 months before its expiry.

Can patent be granted worldwide?

Patents are territorial rights. This protection can only be enjoyed in the country in which it is registered. We cannot obtain a worldwide patent or international patent. If anyone wants to seek worldwide patent, an international application can be filed under the Patent corporation treaty (PCT). This can only be possible if the country in which patent is registered is a member country of PCT.

Reference

[i] Indira Gandhi National Open University School of Law, Basics of Patents, October 2019

[ii] Ibid

[iii] Ibid

[iv] www.greyb.com

[v] Ibid

[vi] Indira Gandhi National Open University School of Law, Basics of Patents, October 2019

[vii] www.greyb.com

[viii] www.mewburn.com

[ix] Ibid

[x] www.greyb.com

[xi] Ibid