Intellectual
Property Rights
Patents
Act, 1970
CHAPTER VIII: GRANT AND SEALING OF PATENTS AND RIGHTS CONFERRED THEREBY
43. Grant and sealing of patent
(1) Where, a complete specification
in pursuance of an application for a patent has been accepted and either-
(a) the application has not been
opposed under section 25 and the time for the filing of the opposition
has expired; or
(b) the application has been opposed
and the opposition has been finally decided in favour of the applicant;
or
(c) the application has not been
refused by the Controller by virtue of any power vested in him by this
Act,
the patent shall, on request made
by the applicant in the prescribed form, be granted to the applicant or,
in the case of a joint application, to the applicants jointly, and the
Controller shall cause the patent to be sealed with the seal of the patent
office and the date on which the patent is sealed shall be entered in
the register.
(2) Subject to the provisions
of sub-section (1) and of the provisions of this Act with respect to patents
of addition, a request under this section for the sealing of a patent
shall be made not later than the expiration of a period of six months
from the date of advertisement of the acceptance of the complete specification:
PROVIDED that-
(a) where at the expiration of
the said six months any proceeding in relation to the application for
the patent is pending before the Controller or the High Court, the request
may be made within the prescribed period after the final determination
of that proceeding;
(b) where the applicant or one
of the applicants has died before the expiration of the time within which
under the provisions of this sub-section the request could otherwise be
made, the said request may be made at any time within twelve months after
the date of the death or at such later time as the Controller may allow.
(3) The period within which under
sub-section (2) a request for the sealing of a patent may be made may,
from time to time, be extended by the Controller to such longer period
as may be specified in an application made to him in that behalf, if the
application is made and the prescribed fee paid within that longer period:
PROVIDED that the first-mentioned
period shall not be extended under this sub-section by more than three
months in the aggregate.
Explanation
: For the purposes of this section a proceeding shall be deemed to be
pending so long as the time for any appeal therein (apart from any future
extension of that time) has not expired, and a proceeding shall be deemed
to be finally determined when the time for any appeal therein (apart from
any such extension) has expired without the appeal being brought.
44. Amendment of patent granted to deceased applicant
Where,
at any time after a patent has been sealed in pursuance of an application
under this Act, the Controller is satisfied that the person to whom the
patent was granted had died, or, in the case of a body corporate, had
ceased to exist, before the patent was sealed, 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, and the patent shall
be deemed always to have had effect, accordingly.
45. Date of patent
(1) Subject
to the other provisions contained in this Act, every patent shall be dated
as of the date on which the complete specification was filed:
PROVIDED that a patent which is
granted in pursuance of an application to which any directions issued
under section 78C of the Indian Patents and Designs Act, 1911 (2 of 1911),
applied immediately before the commencement of this Act, shall be dated
as of the date of the filing of the complete specification or the date
of such commencement whichever is later.
(2) The date of every patent be
entered in the register.
(3) Notwithstanding
anything contained in this section, no suit or other proceeding shall
be commenced or prosecuted in respect of an infringement committed before
the date of advertisement of the acceptance of the complete specification.
46. Form, extent and effect of patent
(1) Every
patent shall be in the prescribed form and shall have effect throughout
India.
(2) A patent shall be granted
for one invention only:
PROVIDED
that it shall not be competent for any person in a suit or other proceeding
to take any objection to a patent on the ground that it has been granted
for more than one invention.
47. Grant of patents to be subject to certain conditions
The grant
of a patent under this Act shall be subject to the condition that-
(1) any machine, apparatus or
other article in respect of which the patent is granted or any article
made by using a process in respect of which the patent is granted, may
be imported or made by or on behalf of the government for the purpose
merely of its own use;
(2) any process in respect of
which the patent is granted may be used by or on behalf of the government
for the purpose merely of its own use;
(3) any machine, apparatus or
other article in respect of which the patent is granted or any article
made by the use of the process in respect of which the patent is granted,
may be made or used, and any process in respect of which the patent is
granted may be used, by any person, for the purpose merely of experiment
or research including the imparting of instructions to pupils; and
(4) in
the case of a patent in respect of any medicine or drug, the medicine
or drug may be imported by the government for the purpose merely of its
own use or for distribution in any dispensary, hospital or other medical
institution maintained by or on behalf of the government or any other
dispensary, hospital or medical institution which the Central Government
may, having regard to the public service that such dispensary, hospital
or medical institution renders, specify in this behalf by notification
in the Official Gazette.
48. Rights of patentees
(1) Subject
to the other provisions contained in this Act, a patent granted before
the commencement of this Act, shall confer on the patentee the exclusive
right by himself, his agents or licensees to make, use, exercise, sell
or distribute the invention in India.
(2) Subject to the other provisions
contained in this Act and the conditions specified in section 47, a patent
granted after the commencement of this Act shall confer upon the patentee-
(a) where the patent is for an
article or substance, the exclusive right by himself, his agents or licensees
to make, use, exercise, sell or distribute such article or substance in
India;
(b) where
a patent is for a method or process of manufacturing an article or substance,
the exclusive right by himself, his agents or licensees to use or exercise
the method or process in India.
49. Patent rights not infringed when used on foreign vessels,
etc. temporarily or accidentally in India
(1) Where
a vessel or aircraft registered in a foreign country or a land vehicle
owned by a person ordinarily resident in such country comes into India
(including the territorial waters thereof) temporarily or accidentally
only, the rights conferred by a patent for an invention shall not be deemed
to be infringed by the use of the invention-
(a) in the body of the vessel
or in the machinery, tackle, apparatus or other accessories thereof, so
far as the invention is used on board the vessel and for its actual needs
only; or
(b) in the construction or working
of the aircraft or land vehicle or of the accessories thereof,
as the case may be.
(2) This
section shall not extend to vessels, aircraft or land vehicles owned by
persons ordinarily resident in a foreign country the law of which do not
confer corresponding rights with respect to the use of inventions in vessels,
aircraft or land vehicles owned by persons ordinarily resident in India
while in the ports or within the territorial waters of that foreign country
or otherwise within the jurisdiction of its courts.
50. Rights of co-owners of patents
(1) Where
a patent is granted to two or more persons, each of those persons shall,
unless an agreement to the contrary is in force, be entitled to an equal
undivided share in the patent.
(2) Subject to the provisions
contained in this section and in section 51, where two or more persons
are registered as grantee or proprietor of a patent, then, unless an agreement
to the contrary is in force, each of those persons shall be entitled,
by himself or his agents, to make, use, exercise and sell the patented
invention for his own benefit without accounting to the other person or
persons.
(3) Subject to the provisions
contained in this section and in section 51 and to any agreement for the
time being in force, where two or more persons are registered as grantee
or proprietor of a patent, then, a licence under the patent shall not
be granted and a share in the patent shall not be assigned by one of such
persons except with the consent of the other person or persons.
(4) Where a patented article is
sold by one of two or more persons registered as grantee or proprietor
of a patent, the purchaser and any person claiming through him shall be
entitled to deal with the article in the same manner as if the article
had been sold by a sole patentee.
(5) Subject to the provisions
contained in this section, the rules of law applicable to the ownership
and devolution of movable property generally shall apply in relation to
patents, and nothing contained in sub-section (1) or sub-section (2) shall
affect the mutual rights or obligations of trustees or of the legal representatives
of a deceased person or their rights or obligations as such.
(6) Nothing
in this section shall affect the rights of the assignees of a partial
interest in a patent created before the commencement of this Act.
51. Power of Controller to give directions to co-owners
(1) Where
or more persons are registered as grantee or proprietor of a patent, the
Controller may, upon application made to him in the prescribed manner
by any of those persons, give such directions in accordance with the application
as to the sale or lease of the patent or any interest therein, the grant
of licence under the patent, or the exercise of any right under section
50 in relation thereto, as he thinks fit.
(2) If any person registered as
grantee or proprietor of a patent fails to execute any instrument or to
do any other thing required for the carrying out of any direction given
under this section within fourteen days after being requested in writing
so to do by any of the other persons so registered, the Controller may
upon application made to him in the prescribed manner by any such other
person give directions empowering any person to execute that instrument
or to do that in the name and on behalf of the person in default.
(3) Before giving any directions
in pursuance of an application under this section, the Controller shall
give an opportunity to be heard-
(a) in the case of an application
under sub-section (1), to the other person or persons registered as grantee
or proprietor of the patent;
(b) in the case of an application
under sub-section (2), to the person in default
(4) No
direction shall be given under this section so as to affect the mutual
rights or obligations of trustees or of the legal representatives of a
deceased person or of their rights or obligations as such, or which is
inconsistent with the terms of any agreement between persons registered
as grantee or proprietor of the patent.
52. Grant of patent to true and first inventor where it has been
obtained by another in fraud of him
(1) Where
a patent has been revoked on the ground that the patent was obtained wrongfully
and in contravention of the rights of the petitioner or any person under
or through whom he claims, or, where in a petition for revocation, the
court, instead of revoking the patent, directs the complete specification
to be amended by the exclusion of a claim or claims in consequence of
a finding that the invention covered by such claim or claims had been
obtained from the petitioner, the court may, by order passed in the same
proceeding, permit the grant to the petitioner of the whole or such part
of the invention which the court finds has been wrongfully obtained by
the patentee, in lieu of the patent so revoked or is excluded by amendment.
(2) Where any such order is passed,
the Controller shall, on request by the petitioner made in the prescribed
manner grant to him-
(i) in cases where the court permits
the whole of the patent to be granted, a new patent bearing the same date
and number as the patent revoked;
(ii) in cases where the court
permits a part only of the patent to be granted, a new patent for such
part bearing the same date as the patent revoked and numbered in such
manner as may be prescribed:
PROVIDED that the Controller may,
as a condition of such grant, require the petitioner to file a new and
complete specification to the satisfaction of the Controller describing
and claiming that part of the invention for which the patent is to be
granted.
(3) No
suit shall be brought for any infringement of a patent granted under this
section committed before the actual date on which such patent was granted.
53. Term of patent
(1) Subject
to the provisions of this Act, the term of every patent granted under
this Act shall-
(a) in respect of an invention
claiming the method or process of manufacture of a substance, where the
substance is intended for use, or is capable of being used, as food or
as medicine or drug, be five years from the date of sealing of the patent,
or seven years from the date of the patent whichever period is shorter;
and
(b) in respect, of any other invention,
be fourteen years from the date of the patent.
(2) A patent shall cease to have
effect notwithstanding anything therein or in this Act on the expiration
of the period prescribed for the payment of any renewal fee, if that fee
is not paid within the prescribed period or within that period as extended
under this section.
(3) The period prescribed for
the payment of any renewal fee shall be extended to such period, not being
more than six months longer than the prescribed period, as may be specified
in a request made to the Controller if the request is made and the renewal
fee and the prescribed additional fee paid before the expiration of the
period so specified.
|
