In accordance with the laws of this country, the rights of a patentee have been ensured. The patentee has been empowered to grant licences, patents and advertise the invention. Enforcing a patent guarantees that the inventor’s intellectual property interests are secured. The issuance of a patent confers exclusive rights to the proprietor of the invention to create, use,… Read More »

In accordance with the laws of this country, the rights of a patentee have been ensured. The patentee has been empowered to grant licences, patents and advertise the invention. Enforcing a patent guarantees that the inventor’s intellectual property interests are secured. The issuance of a patent confers exclusive rights to the proprietor of the invention to create, use, sell and transmit an item of the invention. Vatsala Sood explains the minutiae of the provisions under Indian law...

In accordance with the laws of this country, the rights of a patentee have been ensured. The patentee has been empowered to grant licences, patents and advertise the invention. Enforcing a patent guarantees that the inventor’s intellectual property interests are secured. The issuance of a patent confers exclusive rights to the proprietor of the invention to create, use, sell and transmit an item of the invention. Vatsala Sood explains the minutiae of the provisions under Indian law which protect the rights of a patentee.

I. Introduction

With the total rights to the invention, the patent enthrones the inventor. This privilege helps the inventor to control how the item can be used, who uses it and to what degree it can be used. A creator would have to submit an application for the award of patency for his invention in order to enforce his rights. The exclusive rights will be given to the inventor after the formal procedures and considerations are completed. It should be remembered that the patentee’s rights are not absolute and are subject to limits and different factors.

The holder of the patent cherishes the system of exclusive privileges as a driving factor for investment in creative exercises and the propagation of public learning. These rights, however, are not perpetual and can be repealed under rare situations, matching the interests of the patent holders with those of others; there are various exceptions and limits to these rights. Certain special cases are used for litigation or research; use on external vessels; receiving regulatory endorsements from experts; exhaustion of patent rights and concurrent imports.

Therefore, a patent is a collection of exclusive rights issued by a State for a specified period of time to an inventor or his assignee in return for publication of the invention. It refers to an award to at least one person of any advantage, land, or specialist made by a government or the sovereign of the country.

The method or form in which it is performed is referred to as a patent. The development of intelligence added to capital and labour in order to create something new and useful is an invention. Such an invention becomes the restrictive property of the author until the patent is granted[1].

II. Rights of a Patentee

A patent is a statutory award that gives the grantee certain distribution rights for a limited time, subject to specific conditions. It may be treated as a form of property in any way. A grant of a patent grants the patentee the sole right to construct or use the copyrighted article or use the patented technique. As a result of this, he will prohibit all those from producing or using the patented article or using the patented technology as an outcome.

A patent-imposing value proposition not only enables the applicant in the midst of the patent insurance era for progress without conflict; it also empowers him to dominate the market in a solid position upon the expiry of the restricting facilities[2].

A patentee also has the right to nominate, authorise, or otherwise administer the patent for whatever reason. Different requirements and restrictions encompass these rights provided by the law. The interests of the patentee shall be assumed to be those in action. Vaughan Williams, L.J., in Edwards v. Picard, noted:

“Now what is the patentee’s right to do?”

It is an option of action created by the exercise of Royal prerogative, and different from the right of land in a chattel created by it.

Again, Buckley, L.J. noted:

“The legal characteristics of a patent are not that it confers a right of production on the patentee, so that he can do without a patent, but that it gives him a monopoly in the manufacture of the patent.”

It establishes in him a right of action to negate the output of some other individual. It grants him the right to bring a suit for violation and a subsequent redress under the Directive process, or damages or both. This right is a legal privilege. A right to property is the right of a patentee to the preferential use of a patented invention for the duration of its protection under the Act[3].

In an obscure recipe or method not patented under the Act, there is no elite privilege close to that of a patent. At a time when a man has found a significant invention but has not yet patented it such ingredients will be marketed by someone who has encountered the ingredients in the absence of some violation of confidence or theft.

Anyone who has turned out to be accustomed to the way to assemble an article after something is mentioned in the mystery is able to do it. On the grounds of violation of understanding, breach of certainty or extortion, a man may be prohibited from using a mystery method. It was also held in United Indigo Chemical Co Ltd. v. Robinson that a corporation should not retain its employee’s use of information legitimately gained during the course of his former employment following termination of the job[4].

III. Is it an Absolute Right?

The right to a patent is not absolute. It is an encumbered right that is subject to the strict restrictions that are imposed. The Indian Patents Act, 1970 is well balanced between the patentee’s human interests and the broader public interest. No absolute monopoly is given by a patent. In addition to ensuring safeguards for the invention of the right-holder, the Act is therefore mindful of the interest of the public; the key aim of the Act is to facilitate the advancement of technological innovation.

The Patent Act provides the inventor with protection for his invention, gives him sole control to the invention and defends him from misuse or unlawful use by anyone of the invention. The government bestows special protection to the patentee under the Patents Act, where the invention cannot be used by anyone without the patentee’s permission[5].

Section 48 of the Indian Patents Act sets down the patentee’s rights under the Act. The clause confers an exclusive right on the patentee to prohibit third parties from operating in India on the manufacture, use, distribution or import of that product where the subject-matter of the patent is a product. Similarly, where the subject-matter of the patent is a process, the patentee has an exclusive authority to forbid the sale in India of the product obtained directly through that process by third parties from using the process for sale[6].

A grant of a patent in India provides the patentee with an exclusive model for the use or development of a patented invention or the use of a patented invention-related process. Under the Patent Act of 1970, certain rights and responsibilities of patentees are embodied. [7]

The multiple types of patentee rights are:

  • Right to Exploit the Patent

Where a new invention is a product, the patentee has the exclusive right to use, produce, import or distribute an invention in India for certain applications. On the other hand, if the inventor’s invention includes the manufacturing process or process of some article or substance, the right to exploit indicates the sole right to practise or use the manufacturing process or system in the jurisdiction of India. Patent law acknowledges a patentee’s sole right to seek market benefit from his invention.

This is to motivate artists to invest in their creative offices, realising that their inventions would be guaranteed by statute and that no one else would be able to replicate their innovations within a certain amount of time (mostly 20 years) in the midst of which the maker would have selective rights. When a patent is in existence, the patentee is presented with such monopolistic powers as an incentive to expose his invention to people in general. Those proprietary privileges are in general, assignable for a term of 20 years, allowing the patentee to licence the invention thereby optimising his benefit.

  • Right to Grant License

The ability to grant a licence or assign rights is issued to the patentee of a patent or to enter into some agreement for some consideration. To be legal and lawful, the assignment or licence must be in writing and should be documented with the Patent Controller.

If a patent attribution document is registered, it is not accepted as confirmation of the title of the patent and the rule applies to the assignee, not to the assignor. If he is a co-owner of a patent, he may delegate to others with the permission of the co-owners or under the direction of the Controller, some share of the patent or issue licences to use the patent.

  • Right to Surrender

The patentee of a patent has the right to forfeit a patent at any point and his or her initiative by giving notice in a specified manner. It is important to do the ads in the Journal with such an offer of surrender.

The publishing is undertaken in order to allow the persons an incentive to challenge the Patentee’s offer of surrender. This is accomplished as the Patentee in the future apprehends his/her non-performance of the Patent and intends to forfeit the Patent.

  • Right to Sue for Infringement

In District Court, the patentee has the right to sue for patent infringement in order to try the case. There is a right for a patentee to forfeit his patent. In the off risk that the patentee or any other entity is not involved in running the patent, the patent can be surrendered to preserve a geographical distance from conceivable denunciation procedures and the consequent duty to pay costs.

Where a patent is issued to at least two individuals, each of the co-owners shall apply for the identical unified bid in the patent, without any consent to the contrary. Each one of them is entitled to make, use or exercise the patent without bookkeeping to the others, irrespective of someone else or then again, its operators. Clearly, this is immune to every agreement to the contrary.

In the duration between the date of publication of the approval of the full specification and the date of fixing of the patent, the claimant may exercise all the advantages and privileges of the patentee, with the exception of the registration of the infringement suit. Any person can make or use a patented article or use a patented technique for the sole purpose of testing or reviewing or imparting guidance to students.

A patent, as against any other entity, has an indistinguishable effect from against the government. The government would certainly respect the privileges of the patentee approved under the Act in this manner. The government can use, or even benefit the proprietary invention or prohibit a person from using a development under particular terms and conditions.

  • Right to Use and Enjoy Patent

The patentee of the patent has the exclusive right to exercise, make, utilize, convey or offer the patented substance or article in India or to practice or utilize or the process or techniques associated with the invention. Such rights can be exercised either by the Patentee himself/herself or by his/her licensees or agents. The patent is granted in the form prescribed under Section 46 (1), which reiterates the exclusive right of the patentee to utilize the patent.

The patent proprietor shall have the sole right to the exercise, manufacture, use, pass or sell in India of the patented material or article, or to the practise or use of the method or techniques relating to the invention. Such protections can be exercised either by the patentee itself or by its licensees or agents. The patent shall be issued in the manner specified in section 46 (1), which reaffirms the patentee’s exclusive right to use the patent.[8].

IV. Section 48 with respect to Indian Precedents

Lord Oliver articulated the fundamental purpose of patent law in Asahi, Kanei Kogyo, as promoting improvements and enhancing by granting the inventor the benefit of a monopoly for a given period of time with the intention of making his invention known to the public. Another equally stimulating aim is for organisations to step out on a limb and spend a great deal of money and time on producing rational and specialised studies. Patents are of exceptional significance to inventors, particularly in the pharmaceutical field. On average, more than $45 billion is expected to be spent annually on R&D.

In comparison, total R&D investment per business has risen at a rate of close to 300 per cent per year. Despite large expenses incurred, it is also submitted; very few medicines are currently commercially developed. Over 8,000 mixes are attempted by and wide during the R&D process, of which only a single is developed into a powerful and secure substance.

Patents are given on prescription companies empower science here in a wider and more complete manner. The restricted infrastructure privileges provided by the patent law provide pharmaceutical firms with a profound reason to spend their capital in R&D [9].

Section 107A of the Patents Act 1970, in other words, the Bolar Clause under the Act, was thoroughly interpreted by the Delhi High Court in Bayer Corporation v. Union of India. Simply put, if the use of a patented invention is properly connected to accordance with such regulatory rules, be they those of India or outside India, it shall not infringe the exclusive rights of the patent proprietor under Section 48 of the Act and count as an infringement of the patent [10].

This opinion offers much-needed guidance on the interpretation of Section 107A, a clause that generic products could use to prevent violation of patents. Through specifying the contours of the provisions, the factors for the adjudication of the cases protected by that provision, and by finding out that it is a case-by-case study, the Bayer Decision creates a necessary balance between the interests of the patentee and the rights of those who are entitled to legally benefit from that provision.

Relying on another decision of the High Court of Delhi, Cipla v. Novartis, the Supreme Court held that under Section 48 of the Patents Act, non-working of a patent, especially in the pharmaceutical field, could not have an effect on the rights of the patentee.[11][12]

In order to grant patentees better protection, Section 48 has been amended and the whole aspect must also be discussed from that perspective. Since the goal is the idea of globalisation and the growth of India’s intellectual property system compatible with global practice, certain rights are issued[13].

The triable concern against the patent requested to be answered on behalf of the respondent is that the requirements vary at different times and therefore the claimant itself is not aware of its invention, which I considered prima facie to be false. The conclusions of the Commissioner thoroughly substantiate the allegation of the plaintiff that the defendants were dishonestly adopting the invention of the plaintiff by making and selling kerosene gas stoves. The defendants thereby followed the invention of the appellant, which was held in Galatea Ltd v. Diyora And Bhandari Company in gross breach of the privileges granted on the plaintiff under Section 48 of the Act[14].

It can only be inferred that since the prima facie argument is determined, while no conclusion of the patent’s validity can be taken, the patent received after the amendment has more meaning.

Therefore it is possible to assign greater weight to the patent secured by the patentee in order to determine the prima facie case, but the onus of arguing the prima facie case as to the merit of the patent and its violation is still on the applicant, and the addition to Section 48 has not made any substantial adjustment to the well-known prima facie case concept to be proven by the plaintiff prior to the award or grant of the patent.[15].

Citing Section 48(b) of the Patents Act 1970, if it is a process patent[16], the patent holder is entitled to preclude the commodity acquired by that process directly in India from being sold for sale and imported for sale by third parties who do not have their permission to use that process.[17]

According to Section 48 of the Patents Act 1970, the act of advertising for sale and distributing the products protected by the patent constitutes an infringement of the exclusive rights of the patentee.[18] Section 48 of the Patent Act 1970 does not support the complainants in all cases, as the opening lines of Section 48 provide that the same is “subject to other provisions of the Act”. A patentee’s right to prohibit anyone from making or selling a proprietary drug for sale is also subject to other provisions of the Act[19].

V. Conclusion

The Patent Act, 1970, sets down rules governing the privileges and duties of the patent proprietor of a patent. The patent controller is obligated to take care of all the rights and responsibilities of the patentee as provided for in the Patent Act, 1970. It is appropriate for the patentee to comply with all rights and obligations.

The violation of the patentee’s rights will only be overcome if the rules are properly positioned and the laws change due to changing circumstances over time. In the event of a violation of their patent rights, the patentee has exclusive rights to go to arbitration. However, within the specified scope of the statute, the interests of the patentee may be enforced.


[1] Basheer, S., & Kochupillai, M. (2008). ‘Exhausting’ Patent Rights in India: Parallel Imports and TRIPS Compliance.

[2] Vashishtha, E. (2020). History of Patent Law in India.

[3] Edwards v. Picard, (1909) 2 KB 903, 905 (CA).

[4] United Indigo Chemical Co Ltd. v. Robinson, (1932) 49 RPC 178.

[5] Suman, S., & Snehi, S. (2018). Rights and Obligations of Patentee. intellect, 4.

[6] Section 48 of the Indian Patents Act, 1970, Available Here

[7] Adelman, M. J., & Baldia, S. (1996). Prospects and limits of the patent provision in the TRIPs Agreement: the case of India. Vand. J. Transnat’l L., 29, 507.

[8] N.V. Philips v. Commissioner of Income-Tax, 1988 172 ITR 521 Cal

[9] 7 [1991] R.P.C. 485 (H.L.). 40

[10] Bayer Corporation and another v. Union of India and others, 2019 (78) PTC Del 521 (Del)(DB).

[11] 2017(70) PTC 80 (DB).

[12] Eisai Co Ltd and another v. Satish Reddy and another, 2019 (79) PTC 568 (Del) at paragraph 50.11.

[13] Bajaj Auto Ltd v. TVS Motor Company Ltd., (2008) ILLJ 726 Mad.

[14] Galatea Ltd vs Diyora And Bhanderi Corporation, C/CS/2/2017, R/CIVIL SUITS NO. 2 of 2017.

[15] Supra^8

[16] Mariappan v. A.R.Safiullah, O.S.A.NOS.263 AND 283 OF 2006, O.S.A.No.263/2006.

[17] K. Ramu v. Adyar Ananda Bhavan, MIPR 2007 (1) 352

[18] Osi Pharmaceuticals v. Intas Biopharmaceuticals, O.S.A.Nos.36 and 37 of 2012, O.S.A.No.36 of 2012.

[19] Novartis Ag & Anr v. Cipla Ltd, I.A. No.24863/2014 IN CS(OS) 3812/2014.

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Intellectual Property Rights | Notes, Cases & Study Material
Updated On 26 Nov 2020 3:24 AM GMT
Vatsala Sood

Vatsala Sood

Student at Symbiosis Law School, Pune

Next Story