Author: Som Shekar Ramakrishna
IntroductionA patent provides exclusivity with respect to the invention that is claimed in the patent document.
The exclusive rights granted to a productpatent include the right to manufacture, use, sell, offer for sale in the country or import into the country in which a patent is granted.
Withrespect to a process patent, the patent holder gets the right to use the process to the exclusion of others.
A process patent also grants the right toprevent others from manufacturing, using, selling, offering for sale or importing the product made using the process. The rights of a patentholder start from the date of publication of the patent application and last until the expiry of the patent term. However, the patent holder canenforce his patent rights only after the patent is granted.Infringement of a patentPatent infringement exists if any person exercises the exclusive rights of the patent holder without permission within the country of patent grantand during the patent term. While assessing patent infringement it is important to ascertain the following:
Whether the person alleged of infringement exercised the rights of the patent holder with respect to the patented invention?;
Whether the rights have been exercised without authorization of the patent holder?;
Whether the actions of the alleged infringer are within the country or territory of patent grant?; and
Whether the patent has not expired or lapsed?
, Email: email@example.com
Section 48, The Patents Act, 1970Section 48 reads as follows:“Subject to the other provisions contained in this Act and the conditions specified in section 47, a patent granted under this Act shall confer upon the patentee -(a) where the subject matter of the patent is a product, the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering forsale, selling or importing for those purposes that product in India;(b) where the subject matter of the patent is a process, the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and fromthe act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India”.
Section 48(a), The Patents Act, 1970.
Section 48(b), The Patents Act, 1970.