Rights of the Patentee28/12/2020
The patent holder enjoys various rights including the right to assign licenses to other persons and authorise them to manufacture and sell the patented item. However, these are not absolute rights and are subject to various constraints and limitations.
Exclusive rights according to Article 28 of the TRIPS agreement
Article 28 of the TRIPS agreement provides the following rights:
A patent shall confer on its owner the following exclusive rights:
- Where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of making, using, offering for sale, selling, or importing for these purposes that product;
- where the subject matter of a patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
- Right to exploit the patent
In India, the patent holder is provided with the right to manufacture, use, sell and distribute the patented product. In case the invention is a process of production, the owner of the patent has the right to direct the procedure to the other person who has been authorised by the patentee. This right can be enforced by the agent of the patent holder.
- Right to assign and license
The patent holder is granted with the rights of assigning or granting licenses for manufacture and distribution of the patented products to others. In case there are co-owners of the patented product, the permission to grant license to the other person shall be sought from the co-owners. The license would be considered to be granted when the request has been duly authorised by the controller.
- Right to surrender the patent
The owner of the patent has the right to surrender his patent after seeking permission from the controller. The controller then advertises about this surrender as per the procedure laid down in the Indian Patents Act. The parties interested in getting the ownership of the patent can then approach the controller. The controller examines the party’s claims and. Surrenders the ownership respectively.
- Right before sealing
Section 24 of the Indian Patents Act 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 provision is provided in Section 54 to 56 of the Indian Patents Act. This provision provides for the modifications in the existing invention. In such a case, the patent holder is granted the right to the modified invention after the notification of the acceptance comes out. Once the notification is presented, the owner is provided with the same rights as provided to the previous patent.
- Right in case of infringement
When any of the rights of the patent holder is violated, then it is termed as patent infringement. This is to mean that if the patented invention is used, manufactured or sold for commercial purposes by any person, then it will be accused of patent infringement. In case of violation of patentee’s rights, the patentee can approach either the district court or a high court. If the person is proven guilty of infringement, the courts will either grant permanent injunction or damages or both.