Patent Law from the perspective of Entrepreneurship

INTRODUCTION

The ‘Patent’ refers to a monopoly right to an invention. Not all inventions are required to be patentable
but where the individual or a institution think of their invention that it can be misused or need to be
patentable and wants to get benefit solely from the invention then that individual or institution can take
the patent of their inventions. The statutory definition of Patent under Section 2(1)(m) of the Patent Act
as a Patent for any invention granted under the Act.

Purpose

The purpose of the granting the patent is to encourage and motivate the inventors to research and
development and innovation. Having the patent of the invention also helps the inventor to take benefit
from that invention or may sell it in the market at the high value which because of the uniqueness. But
as the patent has the validity date that’s why the inventor can only has the patent right to get benfit
from that patent for 20 years for almost all categories(some of the categories like patents of medicine
are given for short period of time). Thus, once the validity period got expired then any of the person can
exploit that innovation publically.

Invention

The ‘invention’ as a main ingredient of the patent has been defined under the Patent Law under Section
2(1)(j) as a new product or process having a new inventive step capable of industrial application. If the
product fall under the inventions which are defined in Section 3 & 4 of the Patent Act then it can’t be
patentable like some frivolous invention contrary to the existing invention, contrary to public order,
method of agriculture and horticulture, medical treatment of humans and animals, presentation of
knowledge, traditional language etc..

Infringement

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:

1. 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.

2. 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.
3. To determine the infringer i.e. the person liable for the infringement.

4. 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.