PRESTIGE INSTITUTE OF MANAGEMENT AND RESEARCH

DEPARTMENT OF LAW

ASSIGNMENT ON :-
Patent : meaning, Rights of Patentee, Infringements

SESSION :- 2022-23

SUBJECT :- Intellectual Property Rights

CLASS :- BBA.LLB. VIII SEM

Submitted By:- KANISHK BANSAL

SUBMITTED TO :- SHRINKHALA Ma’aM

 INDEX

Sr. No. Topic Page no.

1. Acknowledgement 3
2. Certificate of Declaration 4
3. Introduction to Intellectual Property 5

4. Patent 6
5. Rights of Patentee 9
6. Infringement and its Types 10

7. Case Laws 11
8. Conclusion 13
9. Bibliography 14

ACKNOWLEDGEMENT
I would like to express my gratitude to my teacher as well as Shrinkhala swaroop
ma’am who gave me the golden opportunity to do this wonderful project on the
topic Patent : meaning, Rights of Patentee, Infringements, which also helped me in
doing a lot of Research and i came to know about so many new things I am really
thankful to them.

Secondly i would like to thank my parents and friends who helped me a lot in
finalizing this project within the limited time frame.

KANISHK BANSAL

CERTIFICATE OF DECLARATION
I hereby declare that the project work entitled “Patent : meaning, Rights of
Patentee, Infringements” submitted to the Prestige Department of Law, is a record
of an original work done by me under the guidance of miss Shrinkhala Swaroop
ma’am, and this project work is submitted in the parital fulfillment of the
requirements for the semester completion. The results embodied in this assignment
have not been submitted to any other University or Institute.

By Kanishk Bansal

INTRODUCTION
 Intellectual property (IP) is a term referring to creation of the intellect (the
term used in studies of the human mind) for which a monopoly (from greek
word monos means single polein to sell) is assigned to designated owners
by law. Some common types of intellectual property rights (IPR), in some
foreign countries intellectual property rights is referred to as industrial
property, copyright, patent and trademarks, trade secrets all these cover
music, literature and other artistic works, discoveries and inventions and
words, phrases, symbols and designs. Intellectual Property Rights are
themselves a form of property called intangible property. Although many of
the legal principles governing IP and IPR have evolved over centuries, it was
not until the 19th century that the term intellectual property began to be
used and not until the late 20th century that it became commonplace in the
majority of the world. Types of Intellectual Property The term intellectual
property is usually thought of as comprising four separate legal fields:
 Trademarks

 Copyrights

 Patents

 Trade secrets

In this assignment we’ll discuss about patent in detail

What is a Patent?
A patent is an intellectual property right, or IPR, which protects inventions, as well
as new and non-obvious discoveries. The patent is presented as a legal certificate
that ensures that the inventor are the sole benefactor of their invention. Once
patented, the inventor can use their invention to gain commercial benefits –
whether it’s licensing their idea or leveraging it for their business. The patent also
allows the inventor to take legal action against entities reproducing or using their
invention without your permission. One needs to file an application to attain a
patent. Essentially, there are three types of patents in IPR.

Different types of patents

Before embarking on the patent application process, the inventor must recognise

the different types of patents they can file. Here are the three patent types:

1. A Utility patent
The most common types of patent applications received by the Patent
Offices across the world, are for a utility patents. Such a patent covers
various processes, machines, compositions of matter, and manufactures
which are novel and useful to humankind in general. These components of
the utility patent are defined as under:
Processes: Processes are defined as any method or act of doing something,
typically involving technical or industrial processes.

o Compositions of matter: A composition of matter utility patent type

refers to the chemical compositions, including a mixture of
ingredients and substances or new chemical compounds.
o Manufactures: A manufacture is any product that requires
undergoing a manufacturing process.
o Machine: A machines utility patent includes anything that is primarily
regarded as a machine – for instance, computers, refrigerators, air
conditioners, etc.
While one can obtain a utility patent for a new invention, one may also file
for this kind of patent if they are making new and useful improvements or
enhancement to any existing processes, machines, matter, compositions or
manufactures. Remember, a laptop is essentially a mobile computer, and is
considered an improvement of an existing computer. That said, it should be
 noted that India does not offer utility patents currently. As an Indian
innovator looking to file a utility patent, you can apply for utility patents in
countries such as Australia, UAE, China, Germany, France and several other
countries in the European Union. 

2. Design Patent
The design patent is another kind of patent one can obtain. With reference
to patents, the design is the “surface ornamentation” of the object. The
design patent should include details such as the shape and configuration of
the object invented or enhanced. To be eligible to obtain a design patent
protection, one must ensure that the product’s design is inseparable from
the object. And while the object and design should be in sync, the design
patent is only granted for, and thus only protects, the appearance of the
object. However, if one wishes to protect both the functional and the
structural features of the object invented, they can also file for a utility
patent.

3. A Plant Patent:
If one comes across new, distinctive plants, that may not have been seen or
heard of before; they can obtain a third kind of patent: a plant patent.
However, the discovery must fit the requirements under the plant patent
laws before applying. For instance, one cannot apply for this patent if the
plant is a tuber propagated plant, or if it appears uncultivated. It should
only be reproduced asexually. Asexual reproduction the act in which the
plant is reproduced through cutting or grafting, as opposed to reproduction
with seeds. Asexual reproduction is mandatory for plant patents, which
typically do not cover organisms that are genetically modified. The focus of
plant patents is primarily on unconventional horticulture. Like Utility
patents, currently there is no provision for plant patents in India and you
can apply for the same in Australia, USA and several European countries.

Conditions to be satisfied by An Invention to be Patentable :-

 An invention must satisfy the following three conditions of:

(i) Novelty
(ii) Inventiveness
(iii) Usefulness

Novelty: A novel invention is one, which has not been disclosed, in the prior art
where prior art means everything that has been published, presented or
otherwise disclosed to the public on the date of patent (The prior art includes
documents in foreign languages disclosed in any format in any country of the
world). For an invention to be judged as novel, the disclosed information should
not be available in the 'prior art. This means that there should not be any prior
disclosure of any information contained in the application for patent (anywhere in
the public domain, either written or in any other form, or in any language) before
the date on which the application is first filed i.e. the 'priority date'.

Inventiveness (Non-obviousness): A patent application involves an inventive

step if the proposed invention is not obvious to a person skilled in the art i.e.,
skilled in the subject matter of the patent application. The prior art should not
point towards the invention implying that the practitioner of the subject matter
could not have thought about the invention prior to filing of the patent
application. Inventiveness cannot be decided on the material contained in
unpublished patents. The complexity or the simplicity of an inventive step does
not have any bearing on the grant of a patent. In other words a very simple
invention can qualify for a patent. If there is an inventive step between the
proposed patent and the prior art at that point of time, then an invention has
taken place.

Usefulness: An invention must possess utility for the grant of patent. No valid
patent can be granted for an invention devoid of utility.

RIGHTS OF THE PATENTEE :-

The following are the rights of the patentee which can lead to infringements
if violated.
• Right to exploit the patent: The owner of the patent is granted the right to
manufacture, use, sell and distribute the patented item in India. If the invention is
a procedure of production, the patentee has the right to exercise and direct the
method of the process. The agent of the patentee can enforce this right.
• Right to assign and license: the owner of the invention is granted powers to
deal with the patent in considerations of granting or assigning of license to others.
In case there is more than one inventor, the co-owner can delegate his rights to
the granting of license with the permission of the colleague in the invention and
authorized by the controller.
• Right to Surrender the Patent: A patentee with the permission of the controller
can decide to surrender the patent. When such a case arises, the controller will
advertise the patent in line with the rules governing the process in which he will
notify the parties interested in the offer. The interested person will write to
notify the controller of his interest and if the controller is satisfied with the
positions of the patentee and the interested party, then the patent will be
surrendered.
• Right before sealing: Section 24 implies that a patent is sealed from the date of
notification for acceptance to the date of acceptance of the notification. The right
of the patentee begins after the notification for acceptance has been presented.
• Right to apply for the patent of addition: this is expressed in sections 54 to 56
of the Act. A patent of addition allows for the modifications in an existing
invention and an applicant for notification of acceptance is granted the rights to
the patency of the same product or idea.
• Right to make convention application: An Indian patentee can apply for the
protection of his patent in a convention in other countries.
• Right in case of Infringement: when any of the rights of the patentee is
violated, then it is an infringement. When the invention of the patentee is
distributed, sold, used and manufactured within India, the right of the patentee
has been violated. In case of an infringement, the owner of the invention can
approach a district court of competent jurisdiction to entertain the case.
• Right to be issued duplicate patent: the Act states that the patentee has the
right to apply to the controller to issue a duplicate patent in event of theft or
damage to the original.
• Right to be supplied copies and certificates: this allows the patentee to be
issued with certified copies of the patents after the payment of a fee.

MEANING OF INFRINGEMENT
Patent Infringement means the violation of a law or right. Infringement of an
intellectual property or rights is the act of using a product or invention with a
valid patent without the authorization of the inventor or patentee. Patent
infringement is the unauthorized selling, importing, and manufacturing of a
patented invention without the authority of the owner.

TYPES OF INFRINGEMENT OF PATENTS

There are two types of infringements of patents: Direct and Indirect Patent
Infringement.

(i) Direct Patent Infringement: this is the most common form of infringement.
This occurs when a product that is in close resemblance in all considerations to
the patented product is sold, produced, used and distributed without the
permission of the inventor.

(ii) Indirect Patent Infringement: this is further divided into two parts; which are
infringement by inducement and contributory infringement. Infringement by
inducement is when a third party causes another to indirectly infringe on the
rights of the patentee. This involves selling parts of a product that can only be
used by the patented invention, selling an instruction for usage of a product in
such a way that infringes the rights of another existing product. In this case, the
inducer is fully aware of the infringement. Contributory Infringement the
marketing of parts of a patented invention which had been created to be used
only in the invention. Contributory infringement takes place when the seller
intends for the product to be infringed.
Case Laws :-
 Astrazeneca Ab & Anr vs. Union Of India & Ors. In the case,

Astra Zeneca filed a petition to quash a para from the order given by the
Controller of Patents with respect to its patent relating to the compound
DAPAGLIFLOZIN, which is used for treatment of diabetes. The relevant para
10 reads as follows:

“10.With respect to the contention of the representor wherein that there

has been no publication of the grant of patent u/s 43(2) in Office Journal
dated 31/07/2009, I submit that there appears to be an inadvertent error
wherein the grant of the said patent was not published. I hereby order that
this may be rectified immediately. The concerned division in the Patent
Office to publish the grant of the patent u/s 43(2) within 15 days from the
date of this order. And all rights and contention of any party pursuant to
grant and notification of grant will be governed under the law.”
The Court stayed the operation of the para considering the fact that
publishing the patent after 11 years, especially after the patent grant was
updated on the patent office’s website may not be reasonable to Astra
Zeneca unless the case and its nuances are reviewed comprehensively. It
therefore posted the case for further hearing. Allowing the patent to be
published would have opened the gates for post grant oppositions, which
would have proved to be detrimental to the interests of Astra Zeneca.
 Interdigital Technology … vs Xiaomi Corporation & Ors.
In this case involving Standard Essential Patents pertaining to 3G and 4G
technologies, the Delhi High Court granted an ad interim injunction against
the order of a Wuhan Court with respect to an Anti-Suit Injunction
Application filed by Xiaomi. The Court held that the Wuhan Court’s order
cannot interfere with the enforcement of patent rights pertaining to Indian
patents, which can be done only before Indian Courts. In a case for setting
royalty rates, the Wuhan Court had granted an Anti-Suit Injunction in
favour of Xiaomi prohibiting Interdigital from proceeding with patent
infringement suits pertaining to the SEPs that form part of the Wuhan case.
While granting the ad interim injunction, the Court also stated that the
Wuhan Court does not have the jurisdiction to proscribe infringement suits
in India, and that the proceedings before the Courts are different from each
other. It stated that Comity principles pertaining to foreign judgments must
yield to municipal law, public policy and justice.
 CONCLUSION
Patent is one of the intangible forms of property under Intellectual Property. The
grant of patents must follow the tests of novelty, non-obviousness and utility,
only then the patent can be granted to the true and first inventor of the patent.
The inventions need to be incredibly new and novel. Moreover, the invention
needs to be capable of being industrial application and it must be useful to the
general public at reasonable and affordable price. To accomplish the purpose of
the said act, the provision of compulsory license is established so as to curb the
monopoly of the patent owner. Patents are only granted to the person who has
invented the thing for the purposeful use of the general. The newness and novelty
also needs to be included in the invention to get patented. The various case laws
have been decided by the court so as to meet the criteria of the invention to get
patented. This statutory act is conclusive and includes each and every aspect of
invention needs to get patented.
 
The Patents Act, 1970 bars the ever greening of the patent inventions. This is one
of the major features of this act. Also prohibits certain inventions under section 3
of the said act. The medicines and drugs are granted patents very rarely in India.
The invention should contain an inventive step also. If all these requisites are
accomplished only then the patent can be granted under Indian Patents Act,
1970. The legislation is very beneficial to the patent owners as it ensures that
their rights are safeguarded by the said act. But the scope of granting patents to
pharmaceutical sector needs to be enlarged. Large numbers of patent
applications are filed but only few of them gets the patent grant. This is not good
for the development of country. The patents act needs more amendments and
wider perspectives should be adopted so that more and more industries can get
the patents. Every legislation or statute has some loopholes but the only need is
to cur those loopholes and a proper strengthened framework should be
established.
Undoubtedly, we can say that patents act is one of the most complicated
legislation under Intellectual Property Rights. It ensures certain rights of the
patent owner but the process for the grant of patents is also very difficult
especially, when we talk about the pharmaceutical sector that is drugs and
medicines. The patent should be granted to wide variety of drugs so that the
medical science sector can be developed and more drugs will be made available
to the poor people.
Bibliography

(1) https://www.iare.ac.in/sites/default/files/lecture_notes/
IARE_IPR_NOTES_0.pdf

(2) https://www.bitspilani.ac.in/uploads/
Patent_ManualOct_25th_07.pdf

(3) https://iptse.com/what-are-the-different-types-of-patents/
#:~:text=A%20patent%20is%20an%20intellectual%20property
%20right%2C%20or,inventor%20are%20the%20sole
%20benefactor%20of%20their%20invention.

(4) https://blog.ipleaders.in/guide-ipr-patent-india/

(5) https://www.lawnn.com/patent-infringement/

(6) https://lawcirca.com/rights-of-patentees/

(7) http://www.bananaip.com/ip-news-center/patent-cases-in-2020-
short-notes-and-summaries/