The Law of Intellectual Property is meant for encouragement for creations,, inventions, and of course for discoveries. The purpose of the word ‘ Of Course’, here is that there is a difference between Invention and Discovery, the former denotes to create a new, while the latter means to identify that does not identified by any one previously which was already existed.
| "Balance between " Private Rights and Public Good" |
In 2001 the UN issued a document called :” Human Rights and intellectual Property” that agued that intellectual property tends to be governed by economic goals when it should be viewed primarily as social product, in order to serve human well-being intellectual property systems must respect and conform to human right laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health and to cultural participation and scientific benefits.
Intellectual Property should not be one’s own property for monopoly privileges, it should be for advancement of better society., and for social progress and encouragement for the people for further inventions and of course finally, it is a matter of ‘ Private Rights Vs. Public Good “., which has to be decided by the Hon’Ble Courts of Law on Case to Case basis.
The owners are granted certain exclusive rights to the works relating to literacy , musical, and inventions etc. The patents are for inventions but not for encouragement of monopoly privileges .Under the Patents Rights act, legislative powers over the protection of intellectual property was rightly granted and the Law of Patent is a “ Common-Law- Doctrine:. Scientists and engineers are expressing concern that property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society.
Constitution is not a mere law, but as the machinery by which laws are made. Though the Law Of Patent was made with India's commitment to various international treaties etc., IP laws is not above the Constitution. An attempt to make a fine balance between Public Good and Private Rights. can been seen in Patent Laws. As a leader of the third world countries India has extended social responsibility towards their welfare. This responsibility is also reflected in the Patent Act.
EQUAL RIGHTS:
India is a signatory country to the Paris Convention and the WTO. The foreigners draw right to file patent applications in the foreign countries under the provisions of the Paris Convention and the TRIPS Agreement. The foreign applicants have equal rights before the patent law of India and there is no discrimination based on nationality as agreed by India to the above-stated international instruments.
When an application is made by virtue of an assignment of rights to apply for patent for the invention, the applicant needs to file the right to assignment in the prescribed form within six months from the date of the filing of the application in India. A declaration of inventorship is required to be filed with the complete application or within one month from the date of the filing of the complete application. Besides, the applicant needs to keep the Indian Patent Office update on other national phase applications for the same invention in the prescribed format in the prescribed time.
India has adopted post-grant opposition procedure without loosing her old pre-grant opposition procedure. When a patent application is published but the patent has not been granted, any person in writing may oppose the application on any of the prescribed grounds. Similarly, any person, at any time after the grant of the patent but before the expiry of one year from the date of publication of grant of the patent may give a notice of opposition to the Controller in the prescribed manner.
When the application is found to be in order for the grant of patent complying with the Patent Act, a patent is granted.
The life span of a patent is twenty years starting from the date of the filing of the patent application. For the international applications filed under the Patent Cooperation Treaty (PCT) the twenty years shall be counted from the international (PCT) application filing date.
The patent requires to be renewed each year by paying the renewal fee. In absence of non-renewal of patent, the rights are lapsed. The applicant can file for renewal of the lapsed patent within eighteen months from the date on which the patent has ceased to have effect. There is no right during the suspension of patent due to non-renewal.
To balance the monopoly patent rights granted to a parson, there is a complete chapter titled 'working of patents, compulsory licenses and revocation' to safeguard the socialist commitment of India. Another chapter titled 'use of inventions for purpose of Government and acquisition of inventions by central Government' is an attempt by India not to find her into tight spot to honor a patent against her national or social interests.
When an inventor comes up with new and innovative product, most of the time inventor feels that he can get patent right on his product to have monopoly and to make, use and sell his patented product.
Person having a patent does not give that person the right to practice his invention. The basic patent only has both positive and negative right, where as all improvement patent enables their owner to exclude others from practicing their patented products.
DISCOVERY IS DIFFERENT FROM INVENTION
Under Indian patent law , the mere discovery of a scientific principle or the formulation of an abstract theory ( or discovery of any living thing or non-living substance occurring in nature) is not invention.
The Section 3 ( d) of the Patent Act, covered the above mentioned concept .
Under the Indian Constitution , a statute can be challenged as violating the constitution on two main grounds:
1. That it impinges on the fundamental rights.
2. That the parliament lacks legislative competence to enact the statutory provision in question.
Now we will see:
1. That whether Section 3 (d) violated the fundamental right to equality as enshrined in article 14 of the constitution.,?
2. That usage of terms such as enhancement of known efficacy and differ significantly in properties with regard to efficacy without accompanying guidelines elucidating their scope rendered under section 3(d) vague and arbitrary,?
3. That the structure of section 3 ( d) vested the patent office with unfettered discretion to devise its own policy and determine as to what constituted a significant enhancement of efficacy.,? Is it violation of the constitution , as it amounted to a delegation of an essential legislative function., ?
No not at all., because the threshold for any statutory provision to qualify as “ arbitrary ‘ and therefore violation of article 14 is considerably high and Indian courts have shown great reluctance in striking down legislations on this count.
The Supreme court has ruled in several cases that while parliament may delegate some functions to administrative bodies,. , it ought not to delegate an essential legislative function., In other word, it is permissible for the legislature to lay down broad policy and delegate powers of rule making to the statutory authority to implement the policy delegated legislation is particularly common in areas of specialized knowledge. Where the legislature lacks the knowledge and expertise to frame detailed rules.
The Madras High Court correctly hinted that section 3 (d) is an example of delegation of a non-essential legislative function. And that merely because it is “ skeletal” or that it does not define terms such a enhancement of know efficacy does not mean that uncanalised discretion has been vested on the Patent and upheld the validity of the said Section 3(d).
No dispute. But while practicing more interpretations, or difference of opinions have been arising with regard to the said section. This is just because of bad practices and because of intellectual copying, that leads to discouragement for genuine inventions.
The Dist. court has the jurisdiction to try an infringement suit. Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit is transferred to the respective High Court for decision. In an infringement suit the court may grant an injunction and at the opinion of the plaintiff either damages or account of profit. The court may also order for the forfeiture and destruction of the infringing goods without any compensation. The appeals to the orders and decisions of the Controller and all cases of revocation of patent other than on a counter-claim in a suit for infringement and rectification of register pending before any High Court shall go to the Intellectual Property Appellate Board (IPAB )
DELAY:
The delay in registering the Patent rights, leads to copy of the said product by another one, who do not apply for registration of patent rights, and who cannot be stopped to sell the said good in the market. The ultimate result is ‘ discouragement to the genuine inventor, because of practice of delay ..
The Hon'Ble Supreme Court of India, in the case of “ Bajaj Auto Ltd Vs. TVS Motor Company Ltd, opined that :
“Matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the trial Court instead of merely granting or refusing to grant injunction.
Experience shows that in the matters of trademarks, copy rights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper.
In our opinion, in matters relating to trademarks, copy rights and patents, the proviso to Order XVII, Rule 1(2) of C.P.C., should be strictly complied with by all the courts, and the hearing of the suit in such matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the Case.
At the point of this time, I cannot be remained silent from non mentioning the worry of Shri Arun Shourie,” UNFORTUNATELY THERE IS NO LAW IN INDIA TO CHECK THE COURT ADJOURNMENTS’. And I request you all to read Shrourieji’s “ The Courts and Their Judgments “.
REMEDIES:
Under the Indian Patent Act, the right of the patentee has been protected. If the monopoly rights of the patentee are violated, his rights are secured by the Act through judicial intervention. The patentee has to institute a suit for infringement. The relief’s which may be awarded in such a suit are Interlocutory/ interim injunction, Damages or account of profits, Permanent injunction.
Section 104 of the Act provides that a suit for infringement shall not be instituted in any court inferior to a District Court having jurisdiction to try the suit. In appropriate cases where the High Court has original jurisdiction to try the suit, the suit shall be instituted in the High Court when an action for infringement has been instituted in a District Court and the defendants make a counter claim for revocation of the patents, the suit is transferred to the High Court for decision because High Court has the jurisdiction to try cases of revocation. Section 104A provides for burden of proof in case of suits concerning infringement. The procedure followed in conducting a suit for infringement is governed by the provisions of code of civil procedure.
The limitation for instituting a suit for patent infringement is three years from the date of infringement.
Customs Act, 1962 prohibits import of goods that infringe intellectual property. Section 11 of the Act empowers the Central Government, for the purposes specified in subsection 11(2), to prohibit import or export of goods of any description by issuing a notification. Section 11(2) (n) read with Section 11(1) of the Act empowers the Central Government to prohibit import or export of goods for the protection of patents, trademarks and copyrights. Section 11(2) (u) covers prohibition for the prevention of the contravention of any law for the time being in force. Section 111 and 113 of the Act empowers the Customs to confiscate improperly imported and exported goods respectively.
The Central Government also notified ‘Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007′ on the same date. The rules were notified with a view to strengthen the statutory and executive guidelines provided for the protection of intellectual property rights at the borders.
Under the rules, an intellectual property right holder may give notice in writing to the Commissioner of Customs or any Customs officer authorized in this behalf by the Commissioner, requesting for suspension of clearance of goods suspected to be infringing intellectual property rights.
The Patentee has to give the necessary information with regard to the identify infringing goods to customs authorities. The Custom authorities has to verify details of the importer, from where and whom the goods are consigned and to verify the documents those are produced by the importer.
WHAT WE THE LAWYERS HAVE TO DO ?
As our senior Lawyer Gandhiji said that “A TURE LAWYER IS ONE WHO PUT TRUTH AND SERVICE IN FIRST PLACE AND THE LAW IS NOT AN INTELLECTUAL LEGERDEMAIN TO MAKE BLOCK APEAR WHITE AND WHITE APPEAR BLOCK AND IT IS A CEASELESS ENDEAVOUR TO ENTHRONE JUSTICE— It is the moral and social responsibility of the Lawyers to support the provisions of such
kind of law, and to draw the right interpretations, for the purpose of paving the way for new inventions for better India and the World. And not certainly for just to defend their clients.
K. PHANI KUMAR,
ADVOCATE
K KPKUMAR@LAW SERVICES,
FLAT C, GROUND FLOOR,
11-13-459/1, SAI SADAN ,
ROAD NO.14, ALAKAPURI,
HYDERABAD-35, A.P.
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