PATENT

A patent is exclusive right granted by Patent to the owner of an invention tomake, use,
manufacture and market the invention, provided the inventionsatisfies certain conditions
stipulated in the law. Exclusive right implies that noone else can make, use, manufacture or
market the invention without the consentof the patent holder. Patent is an award for the
inventor and a reward for theinvestor. The grant of patent for an invention attracts investment
because thecommercial exploitation of the invention is possible to its fullest extent during the
term of the patent.
In Bishwanath Prasad Radhey V. Hindustan Metal Industries1 , the Supreme
Court observed, - The fundamental principle of Patent Law is that a patent is granted only
for an invention which must be new and useful. That is to say, It must have novel and utility.
It is essential for the validity of a patent that it must be the inventors own discovery as
opposed to a mere verification of what was already known before the date of the patent.

In Blakey and Co. V. Lathern and Co.2, Cotton LJ. Stated that to be new in the patent sense,
the novelty must show invention. In other words, in order to be patentable, the new subject
matter must involve invention over what is old. Patent means a monopoly right granted to a
person to exploit his invention for a limited period of time. In India, a patent is granted for a
period of 20 years. During this period, the inventor is entitled to exclude anyone else from
commercially exploiting his invention. The exclusive rights of the inventor can be exercised
by a person other than the inventor with the latters previous authorization. The person to
whom patent is granted is known as patentee. The grant of patent not only recognizes and
rewards the creativity of the inventor, but acts as an inspiration or catalyst for further
inventions which ultimately contribute to the technological development of a nation. After the
expiry of the term of patent, it falls into public domain and becomes public property
(Bishwanath Prasad Radhey Vs. Hindustan Metal Industries3). This right is available for a
limited period of time.
A patent has been held to be a movable property by the Supreme Court in Appeal
(Civil) 4552 Of 1998 in the matter of M/S. Sunrise Associates vs. Government of NCT of
Delhi & Ors. The court, after having considered the definition of "goods" in the Constitution,
in the Sales of Goods Act 1930, the Central Sales Tax Act, 1956, the Tamil Nadu General
Sales Tax Act, 1959, the Karnataka Sales Tax Act, 1957, as well as the Kerala General Sales
Tax Act, 1963, said that all these definitions provided that goods mean inter alia all kinds of
moveable property. The definition of property in several authorities was thereafter considered
and it was concluded that the material on record showed a uniform emphasis on the
expansive manner in which the expression 'property' was understood. It was noted that debts,
contracts and other choses in action were chattels no less than furniture or stock in trade.
Similarly, patents, copyrights and other rights in rem were also included within the meaning
of movable property. In spite of the ownership of the rights, the use or exploitation of the
rights by the owner of the patent may be restricted due to other laws prevalent in the country
which has awarded the patent in the first place. These laws may relate to health, safety, food,
security or in public interest. Further, existing patents in similar area may also come in the
way. A patent in the law is a property right and hence, can be gifted, inherited, assigned, sold
or licensed. As the right is conferred by the State, it can be revoked by the State under very
exigent circumstances even if the patent has been sold or licensed or manufactured or
marketed in the meantime. The patent right is territorial in nature and inventors/their
assignees will have to file separate patent applications in countries of their interest, along
with Salient features of the 2005(Third amendment)-
1) New definition were added for the terms, New invention, and
Pharmaceutical substance
2) Extension of product patent protection to all fields of technology (drugs, food and
chemicals). As a result both process and product patent are now available for all inventions in
India.
3) S. 3(d) of the Act was substituted by a new clause, which provided that a discovery of new
form, property of use of a known substance was not patentable unless it result in enhanced
efficacy, the explanation to the clause provided that salt, esters, polymorphs, and so on, of a
substance are considered to be the same substances.
4) Introduction of a provision to grant compulsory license for export of medicines to
countries which have insufficient or no manufacturing facility to meet public health
emergencies.
5) Deletion of provision relating to Exclusive Marketing rights.
6) System of having both pre-grant and post-grant opposition with the patent office. Also
Constitution of an opposition board by the patent office for dealing with the post grant
opposition.