The whole purpose of securing a patent or a trademark is lost when one is not able to get the leverage of such patent or trademark in financial terms. Every work has to be rewarded to be financially which provides an encouragement to the creator of such patent, design or trademark. LawDocs provides facilities to such legends who have secured patent or trademarks with their hard work to convert their work into financial reward.

Specific terms and conditions

One can extent the use of patent or trademark to the other person by assigning the same with specific terms and conditions which are provided in the LawDocs templates. The model templates can be altered and new terms and conditions can be added to these templates which suits your need and requirement. You can easily assign you right, patent, trademark to other person who may be situated at a long distance with the LawDocs mechanism and can earn huge money. It not only earns you money but also insures the fact that public in general is benefited by your work and is able to access the result of your work.

Patent means

A patent of exclusive right granted by the Government. An assignee of the original inventor may also make an application for a patent in respect of his rights. This application is to be made to the controller of patents or to the appropriate authority in the prescribed form. A mere inventor of a process of manufacturing does not give the inventor any right of its exclusive views. A patent confers only owner of patents, the exclusive right to make, use, sale or distribute the patented article in India.

LawDocs templates

It facilitates the owner of patents to sale or distribute the rights of the patent article. These templates enhance the reach of the product of the patented article and benefits the large number of people. It also financially helps the owner of patent whereby he can easily execute the agreements.

Share in patent

A patent or a share in patent can be assigned or mortgaged or can be given on licence. Such transfer of interest in the patent must be in writing containing the terms and conditions and it should be filed in the office of the patents for  registration within 6 months or within further 6 months if permitted by the controller. Normally the transferee makes and application in the prescribed form.

The agreement relating to the transfer or assignment or licensing of the patents or any right therein attracts the Stamp duty and it is required to be registered with the patents office. The registration act of 1908 is not generally attracted to such agreements.

Patent registrations confers on the rightful owner a right capable of protection under the Act i.e. the right to exclude others from using the invention for a limited period of time. The monopoly over patented right can be exercised by the owner for a period of 20 years after which it is open to exploitation by others.

Patent confers the right to manufacture, use, offer for sale, sell or import the invention for the prescribed period.

Initially, the Act provided for a shorter term pf protection for medicine or drug substances. However, vide the Amendment Act of 2005 uniform period of 20 years was provided for all the Patents. Thus, once the prescribed period of 20 years is over, then any person can exploit the patented invention. Here it would be relevant to mention that similar to a trademark even the term of a patent begins from the date of application of patent.

Non-patentable inventions are enumerated under Section 3 and 4 of the Patent Act. Such inventions are delineated below:

• Any Invention which is frivolous or which claims anything obviously contrary to well established natural laws is not patentable.
• Inventions which are contrary to public order or morality is not patentable.
• An idea or discovery cannot be a subject matter of a patent application.
• Inventions pertaining to known substances and known processes are not patentable i.e. mere discovery of a new form of a known substance which does not enhance the known efficacy of that substance is not patentable.
• An invention obtained through a mere admixture or arrangement is not patentable.
• A method of agriculture or horticulture cannot be subject matter of patent.
• A process involving medical treatment of human and animals or to increase their economic value cannot be subject matter of a patent.
• Plants and animals in whole or in part are not patentable.
• A mathematical or business method or a computer program per se or algorithms is excluded from patent protection.
• Matters that are subject matter of copyright protection like literary, dramatic, musical or artistic work is not patentable.
• Any scheme or rule.
• Presentation of information
• Topography of integrated circuits.
• Traditional knowledge.
  • Inventions relating to atomic energy.

Infringement of Patent primarily refers to intrusion or violation of the rights of a Patentee against which the Patentee has statutory rights under the Act.

The factors that are essential in determining infringement of a Patent are as under:

• While determining infringement it has to be assessed whether the infringing activity fell within the scope of the invention. Thus, the infringement has to be determined with regard to what has been claimed as invention under the Patent Act by applying the principles or standards of construction.
• To determine whether the infringing activity violated any statutory rights conferred to the Patentee under the Act. In this respect reference can be made to Section 48 of the Act which enumerates the rights of the Patentee with respect to a product patent and process patent.
• To determine the infringer i.e. the person liable for the infringement.
  • To determine whether the infringing act fell within the acts which do not amount to infringement under the Patents Act i.e. excluded acts of Government use. Use of patented product or process for experiment or research. Import of medicine or drug by Government and patents in foreign vessels and aircrafts.

We can file the following types of patent applications in the Indian patent office:

• • Convention Application (within 12 months of the priority date)
  • PCT Application (National phase)-within 31 months of the priority date.
    • National Application (Provisional & non-provisional application)

William Heseltine (President, Human Genome Science) has interestingly noted that trying to patent a human gene is like trying to patent a tree. You can patent a table that you build from a tree, but you cannot patent the tree itself. By signing “Budapest Treaty on the International Recognition of the Deposit of Micro organisms for the Purposes of Patent Procedure”, India can assist in the standardization process of biotechnology pate in the country.

Software Patenting:

With respect to computer software, in Patents (Amendment) Act, 2002, the scope of non-patentable subject matter in the Act was amended to include the following: “a mathematical method or a business method or a computer programme per se or algorithms”. However, the recent amendment changes (Ordinance, 2004), which amends the Patents Act, 1970, has been promulgated after receiving assent from the President of India and has came into effect from 1st Jan., 2005. Apart from change in pharmaceuticals and agro chemicals, one of the seminal amendments this Ordinance seeks to bring is to permit the patenting of embedded software.

The monopoly granted by patents to the Drug companies should not be exercised without responsibility. Hence it can be safely said that India having rushed through with the third amendment of 2005 to the patents act. Without proper parliamentary scrutiny and without having tactfully dealt with issues relating to food, health and technology was not in public interest.

Patenting within the biotechnological sphere and the subsequent opposition proceedings which have been undertaken by NGO’s such as the Greenpeace, which have become worried by prospects such as the patenting of life, have led courts to highlight the relationship between patents and morality. However it has to be kept in mind that the concept of morality is relative to the values prevailing in society.

Patents are not a gift for drug companies to exercise power without responsibility. Given the importance of the issues at stake, the debate concerning the impact of medical patents on access to drugs is unlikely to subside in the near future even though the Patents (Amendment) Act, 2002 has just been adopted. This still leaves several years for further open debate concerning the final response to be given to TRIPS in the health sector.

The following facts are noteworthy to gauge the impact of the introduction of pharmaceutical patents in India:

• Consistent growth rate of the Indian economy
• Rising income levels
• Increasing penetration of insurance on all fronts, especially after allowing entry of private players.
• For the 60% of the “poor” in India, who currently do not have access to pharmaceuticals, price rise and demand sensitivity due to patent introduction is irrelevant. Thus only a small part of the market will be affected by the new regime.
• India is governed by a government which relies more on populist politics for survival and this would ensure that the best interests of the population is kept in mind without buckling too much under international pressures. All in all, India stands to gain more in the new patent regime with the inherent costs being marginalized by several factors.

Patenting of Medicines:

Some of the amendments to the Patents Act required by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) have just been adopted by Parliament. Among the many issues dealt with by the amendments, one of the most debated questions has been their impact in the health sector and more specifically on access to medicines. The debates are unlikely to subside with the adoption of the Bill. On the one hand, the amendments have already been attacked for not going far enough to allow compliance with the TRIPS Agreement. On the other hand, the amendments are fundamentally changing the 1970 Patents Act and are likely to negatively affect people’s access to medicines.