Overview of Patents under Intellectual Property Rights

Humans have invented a lot of things in the last few centuries and are still striving towards more invention. Inventions of fire, the wheel, steam engine, etc. are a few of many great inventions by mankind. A person invests a lot of time, money, and effort in inventing a particular thing thereby earning him the right to earn a royalty or any fees from the use of his invention by other people. Therefore, to help a person exercise this right, the concept of intellectual property rights was introduced which guarantees a creator patents, trademarks, or copyrighted on his work so as to benefit it. In this article, we will be getting an overview of patents and also studying it under the Intellectual Property Rights.

1. What are Intellectual Property Rights?

Intellectual property rights are rights guaranteed by the government of India for the protection of the originality of work by an individual. These rights are like any other property right but allow the creator to benefit from their work. The aim of these rights is to safeguard creators and other producers of intellectual goods & services by granting them a specified time limit to have control of authority over their work. It basically means the legal rights resulting from intellectual novelties in the scientific field. These rights are specified in Article 27 of the Universal Declaration of Human Rights which provides benefit to a creator and the protection of material interest resulting from the intellectual activities in the scientific field or industry, etc.

Intellectual property rights are divided into two parts:

  1. Industrial property: these include patents for invention, industrial designs or trademarks.
  2. Copyrights: it covers the work relating to novels, poetry, films, music, artistic work, and architectural designs. They require evidence as to who is the creator of the work.

2. What is a Patent?

A patent is a right granted for inventing of a product or a process through which a new method of doing a particular thing is evolved. By patenting a product or the process, the invention cannot be used commercially, made, or sold without the consent of the creator. The owner of the patented product or process has a right to decide on who can use his patent and who cannot. Also, for the use of his patented invention, the creator will be getting a royalty fee. The owner of the product can also sell the right to the invention with which the ownership will be transferred to the new person, who will be the new owner of that patented thing.

The term patent is defined under Section 2(n) the Indian Patent Act 1970 which stated that a patent means a patent for any type of invention granted under this Act.[1]

A patent provides protection for the invention of a product or process to the creator for a time period of 20 years. But after the expiry of the time period, the patented product will be open for commercial use and the person who was the owner has to disclose all the information of the invention so that it is made easy for the use of others, which will lead to further development in the invention. In this way, patents not only provide protection of rights of the creator but also motivate the new creators for the future development of the same invention.

2.1 Procedure for Granting a Patent

  1. After filing for the grant of a patent, a request is made for examination of the application in the Indian Patent Office within 48 months.
  2. After this first examination is done, the examination report will be issued and then the applicant will be given an opportunity to satisfy objections that were raised in the report.
  3. The applicant must satisfy all the objections within 6 months from the date of issue of the first report, which can also be extended for a period of 3 months on request.
  4. If the objections are not satisfied within the prescribed time period, it will be assumed that the applicant has abandoned the application.
  5. Whereas if all the objections are satisfied, the patent is granted and notified in the patent office general.

2.2 Opposition to Patents

A patent application that has been filed by the creator can be opposed (challenged) if the other party is of the opinion that he has created that particular thing earlier or his idea was copied by the applicant. Section 25 of the Act provides for the grounds under which a person can oppose the patent. This section talks about situations during which the opposition to a patent application (in writing or in person) can be represented to the controller. These situations include the time where the patent has been published but the patent has not been granted or any time after the grant of patent but before the expiry of one year from the date of grant of patent.

In the case of Bishwanath Prasad Radhey Shyam vs. Hindustan Metal Industries PTC[2], the court stated that the grant and sealing of patent or the decision of controller on the opposition application do not guarantee the validity of a patent and the same can be challenged before the High Court on various grounds in infringement proceedings.

In the case of Standipack Private Ltd. and Ors. vs. Oswal Trading Co. Ltd. and Ors[3]., the court stated that in case of infringement, the plaintiff has to make a prima facie case about the existence of monopoly right and its infringement by the defendant

2.3 Inventions that cannot be Patented

Section 3 of the Indian Patent Act, 1970 specifies certain things that are not considered to be invention and thus cannot be patented under the scope of this act. They are:

  1. An invention that is contrary to natural laws.
  2. An invention whose use or intension is against public morality or which can cause harm to humans, animals, plants, or the environment.
  3. A discovery of any living or non-living thing occurring inside nature.
  4. The discovery of a new form of a known substance which does not increase the efficiency of that substance.
  5. A substance obtained by a mixture resulting in aggregation of properties of the components or the process for producing such substance.
  6. The mere re-arrangement of known devices.
  7. A method of horticulture or agriculture.
  8. Any process for medical, surgical, diagnostic, or other treatment of human beings.
  9. A business method or mathematical method or a computer programme.
  10. A method of playing a game or performing a mental act.
  11. A presentation of information.
  12. The topography of integrated circuits.
  13. A duplication of known properties of a traditional know component(s).

2.4 What Happens if a Patent Right is Infringed?

In India, using a patented invention without the consent of the owner is strictly prohibited. If a person violates the same, he may face legal consequences. If someone falsely claims a patent right over another’s invention, upon proven wrong, he shall be punished with a fine which may extend to one lakh rupees.[4]

Patent infringement can only take place once the creator has been given the grant of patent certificate and his invention is notified. Infringement includes unauthorized usage, sale, making, etc. without the owner’s consent. In the Indian Patent Act, 1970, there is only a civil action against the infringement which involves fine.

In the case of Midas Hygiene Industries (P) Ltd. vs. Sudhir Bhatia[5], it was stated that in case of infringement of patent rights, normally an injunction must follow. Also, the grant of injunction becomes necessary if it appears that the adoption of the patent right was dishonest.

In the case of Sandeep Jaidka vs. Mukhesh Mittal & Anr.[6], the court stated that if it is clear that a wrong infringement case is made out and the plaintiff has not been guilty of laches, the court will grant an interlocutory injunction in the following case: (1) when the validity if a patent has been established earlier, (2) when the patent is of old standing, (3) when the validity of a patent is not an issue.


Any invention by a creator is costly as it requires a lot of investment in terms of money, time, and effort. Therefore, a person’s invention should not be utilized commercially without the consent of the creator. Also, the creator should be given the royalty fees using his invention as he has invested a lot in it. The owner has a right to earn royalty from it and can sue anybody who has an unauthorized usage of his invention. A person must be aware of the laws related to the patent so that his rights cannot be infringed and no other person can take the benefit out of his invention.

[1] The Indian Patent Act, 1970, s.2(n)

[2] AIR 1982 SC 144

[3] 1999 PTC (19) 479 (Del)

[4] The Indian Patent Act, 1970, s.120

[5] 2004 (73) DRJ 647, 2004 (28) PTC 121 SC, 2004 (2) SCALE 231, (2004) 3 SCC 90

[6] I.A. No.15260/2010 in CS(OS) No.1900/2010

Kush Bisht from JEMTEC , Greater Noida

“I am a very focused person as my profession asks for it. My goal is to become a good corporate lawyer.”

Editor: Sanskriti Sood

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