Wednesday, 23 April 2014

GRANT AND SEALINC OF PATENTS AND RIGHTS CONFERRED THEREBY

Sections 43 to 53 deal with the grant and sealing of patents and the rights conferred on the patentee.

Grant and sealing of patent (s. 43). Where the application is accepted, either without any opposition or has been accepted after the opposition proceedings have concluded, with a decision is favour of the applicant then the Controller shall grant the patent on a request being made by the applicant in a prescribed form. Thus the patent shall be sealed with the seal of the patent office.

Amendment of patent granted to deceased applicant (s.44). Where, at any time after a patent has been sealed the patentee dies, (or in the case of a body corporate, the same has ceased to exist before the patent is sealed) then the Controller may amend the patent by substituting for the name of that person the name of the person to whom the patent ought to have been granted.

Date of Patent (s. 45). Every patent shall be dated as of the date on which the complete specification was filed. The date of every patent shall be entered in the Register maintained in the Patient office.

Form, extent and effect of patent (s. 46). Every patent shall be in the prescribed form and shall have effect throughout India. Further a patent shall be granted for one invention only.

Grant of patents to be subject to certain conditions (s.47). The rights granted to a patentee under s. 48 are subject to certain conditions. The government may manufacture or import the patented invention for the purpose of its own use. Similarly, any patented process or product may be used for the purpose of experiment or research or imparting of instructions to pupils.

Rights of patentee. Section 48 provides that the following rights are conferred on a patentee: (i) to exploit the patent; (ii) to licence patent to another person; (iii) to assign the patent in favour of another person; (iv) to surrender the patent; (v) to sure for infringement of the patent. However section 49 provides that the patent rights are not deemed to be infringed by the use of the invention on foreign vessels or aircraft which are temporarily or accidentally in India. Section 50 makes a provision for rights of co-owners of patents. Section 51 empowers the controller to give directions to co-owners as to the sale or lease of the patent or any interest therein. The court may grant of patent to true and first inventor where ii has been obtained by another in fraud of him (s. 52).

Term of Patent (s. 53). The term of patent is not the same for all kinds of inventions. In respect of process patent relating to drugs and food, the term is 5 years from the date of sealing of the patent or 7 years from the date of patent (i.e. the date when complete specification is filed) whichever is shorter. In respect of all others patents the term is 14 years from the date of patent. However, India is under an obligation of WTO agreement to increase the term of patent to 20 years in all cases.

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