Rights of Patent Owner, Compulsory Licenses, Government use of Patents

Here’s an overview of the rights of a patent owner, compulsory licenses, and government use of patents under the Indian Patents Act, 1970:

Rights of Patent Owner:

• Exclusive Rights: The patent owner has the exclusive right to:

  • Make, use, offer for sale, sell, or import the patented product in India.

  • Use the patented process and to sell or offer for sale products made by that process in India.

• Right to Assign or License:

  • The patent can be assigned (sold) or licensed to others for use under agreed terms, generally for royalties or other forms of compensation.

• Enforcement:

  • The patentee can seek legal remedies against infringement, including injunctions to stop the infringement, damages, or an account of profits.

• Right to Mark: The patent owner can mark the patented product with the patent number, which serves as notice to the public of the patent’s existence.

Compulsory Licenses:

• Definition: A compulsory license is an authorization by the government that allows a third party to produce, use, or sell a patented product or process without the consent of the patent owner, under certain conditions.

• Conditions for Granting:

  • Reasonable Requirements: If the reasonable requirements of the public with respect to the patented invention have not been satisfied (Section 84).

  • Non-working: If the patented invention is not worked in India on a commercial scale to an adequate extent or is not available to the public at a reasonably affordable price.

  • Dependent Patents: If a later patent cannot be worked without infringing an earlier one, and the invention of the later patent involves an important technical advance (Section 88).

• Procedure:

  • An application must be made to the Controller of Patents after three years from the date of grant of the patent or four years from the filing date, whichever is later.

  • The patentee has an opportunity to be heard before a decision is made.

• Terms: The license is subject to terms ensuring adequate supply of the patented product or use of the process, at a reasonable price.

Government Use of Patents:

• Authority: Under Section 100 of the Act, the Central Government can use or authorize the use of any patented invention for the purposes of the Government or for public non-commercial use without the patentee’s consent.

• Conditions:

  • The government must notify the patentee in writing of the extent of use.

  • Compensation must be paid to the patentee for such use, which is determined by negotiation or if not agreed, by the High Court.

• Public Emergency: In situations like public health crises, national emergencies, or other circumstances of extreme urgency, the government can bypass some procedural steps for immediate action.

• Non-Exclusive: The use by the government is generally non-exclusive, meaning it does not prevent the patentee from continuing to exploit the patent.

• Export Restrictions: Products produced under this provision cannot be exported without permission, except for certain international commitments.

Additional Points:

• Protection of Public Interest: Both compulsory licensing and government use provisions are designed to balance the exclusive rights of patent holders with public interest, particularly in areas like public health or national security.

• Patentee’s Right: Even with compulsory licenses or government use, the patentee retains ownership and can continue to exploit the patent or license it to others.

• International Obligations: These provisions in Indian law align with international treaties like TRIPS, which allow for such mechanisms under specific conditions to protect public health and other societal needs.

These mechanisms ensure that while patent holders have strong rights to benefit from their inventions, there are legal pathways to ensure that patents do not overly restrict access to essential technologies or products when public welfare is at stake.