Ashwin Jha

Section – A
B.A.LL.B Vth Semester
Intellectual Property Law – I
Internal Assessment – II

Topic : Patent Rights

Submitted to: Prof. Ishan Ahmad

Introduction
A patent is a grant conferring certain monopoly rights on the grantee for a definite period,
subject to certain conditions. A grant of patent gives the patentee the exclusive right to make or
use the patented article or use of the patented process. Apart from this right a patentee has also
the powers to assign the patent, grant licenses under and deal with it otherwise; for any
consideration.
However, these rights are not absolute and are circumscribed by various conditions and
limitations. The Patent Act, 1970 contains various provisions in Section 24, Chapter IVA,
Sections 24-A to 24-F, 28, 48, 50, 53, 63 and 58 etc. relating to the specified or implied rights of
the patentees.

Rights In respect of patent:

Rights granted to patentees in respect of patents granted Under the Act (Sec 48 etc.)
Once a patent is granted, the patentee has the exclusive right to make use, exercise, sell or
distribute the patented article or substance in India. In case of a process patent he has the right to
use or exercise the method or process. These rights can be exercised not only by the patentee but
also by his agents or licensees. This right to exploit the patent can be graphically explained as
under:
➢ Right to assign and license
A patentee is vested with the power to assign, grant licenses or to deal with the patent for a
consideration. This is in a case where the patentee himself is not willing to work the patent. If
there are more than one owner of the patent, the co-owner can assign his share of the patent or
grant licenses in respect thereof, provided the other co-owners consent and permitted by the
controller.
➢ Right to surrender the patent
Under Section 63 of the Act, the patentee has the right to surrender his patent. A patentee, at any
time by giving notice in the prescribed manner. When such an offer is made, the controller
should advertise the offer with a view to notifying every person other than the patentee whose
name appears in the register as having an interest in the patent. It is necessary to protect the
interests of persons like licensees, equitable assignees, and others with whom the patentee might
have contractual obligations which are dependent on the continuance of the patent.
➢ Rights before sealing
The patentee enjoys certain rights even before the sealing of the patent also, under Section 24 of
the Act. Under this provision, on and from the date of advertisement of the acceptance of a
complete specification and until the date of sealing of patent, the applicant will be entitled to the
like privileges and rights as if a patent for the invention had been sealed on the date of
advertisement of acceptance of the complete specification. However, the applicant will not be
entitled to institute any legal proceedings for infringement until the patent has been sealed.
➢ Right to apply for “patents of addition”
Chapter IX of the Act, Sections 54 deal with “patents of addition”. A patent of addition is the
improvement or modification of an invention disclosed in the complete specification of the
“main invention”. Under Section 54 of the Act, a patentee has a right to apply for a “patent of
addition” relating to his ‘main invention’.
➢ Right in case of “infringements”
Infringement is the violation of the violation of the rights conferred by the grant of patent. It
consists in the violation of any of the rights like the exclusive right to make, use, exercise, sell or
distribute the invention in India. Whenever a patent is infringed, the patentee has a right to
institute suits in a court of law, not inferior to a District Court having jurisdiction to try the suit.
The patentee may bring in suit for declaration, injuction and also for damages and account of
profits
➢ Right to make a convention application
Every patentee in India has a right to make a convention application or a “basic application”, for
protection of his patent in other convention countries, in case of international instruments being
signed by India and those other convention countries. Generally, this right is dependent on the
principle of ‘reciprocity’ and ‘national treatment’ in international law. However, this position is
proposed to be changed under the 2002 (Am) Act which provides for filing of an International
application under the PCT.
➢ Right to be supplied copies and certificates
Certified copies of any entry in the register, or certificates of or extracts from patents,
specifications and other public documents in the patent office or from the registers and other
records kept there, may be obtained by the patentees and also others by paying the prescribed
fee.
Conclusion
There have been numerous court cases in India on copyright and trademark violations which are
more than patency litigations. Infringement of patentee can only be curtailed when the right laws
are put in place and the obsolete ones update to accommodate the changing situations. Patentees
have the exclusive right to file suits against all forms of infringements and in this creativity and
productivity are encouraged.