If the grant of the patent is for a product, then the patentee has a right to prevent others from making, using, offering for sale, selling or importing the patented product in India.
If the patent is for a process, then the patentee has the right to prevent others from using the process, using the product directly obtained by the process, offering for sale, selling or importing the product in India directly obtained by the process.
Before filing an application for grant of patent in India, it is important to note “What is not Patentable in India?” Following i.e. an invention which is (a) frivolous, (b) obvious, (c) contrary to well established natural laws, (d) contrary to law, (e) morality, (f) injurious to public health, (g) a mere discovery of a scientific principle, (h) the formulation of an abstract theory, (i) a mere discovery of any new property or new use for a known substance or process, machine or apparatus, (j) a substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance, (k) a mere arrangement or rearrangement or duplication of known devices, (I) a method of agriculture or horticulture and (m) inventions relating to atomic energy, are not patentable in India.
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Maintainability of Secrecy by the Indian Patent Office (IPO) :
All patent applications are kept secret up to eighteen months from the date of filing or priority date, whichever is earlier, and thereafter they are published in the Official Journal of the Patent Office published every week. After such publication of the patent application, public can inspect the documents and may take the photocopy thereof on the payment of the prescribed fee.
Compulsory Licensing:
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One of the most important aspects of Indian Patents Act, 1970, is compulsory licensing of the patent subject to the fulfillment of certain conditions. At any time after the expiration of three years from the date of the sealing of a patent, any person interested may make an application to the Controller of Patents for grant of compulsory license of the patent, subject to the fulfillment of following conditions, i.e. the reasonable requirements of the public with respect to the that the patented invention is not available to the public at a reasonable price; or that the patented invention is not worked in the territory of India.
It is further important to note that an application for compulsory may be made by any person notwithstanding that he is already holder of a license under the patent.
For the purpose of compulsory (censing, no person can be stopped from alleging that the reasonable requirements of the public with respect to the patented invention are not satisfied or that the patented invention is not available to the public at a reasonable price by reason of any admission made by him, whether in Such a license or by reason of his having accepted such a license.
The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not available to the public at a reasonable price, may order the patentee to grant a license upon such as he may deem fit.
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However, before the grant of a compulsory license, the Controller of Patents shall take into account following factors:
(i) The nature of invention;
(ii) The time elapsed, since the sealing of the patent;
(iii) The measures already taken by the patentee or the licensee to make full use of the invention;
(iv) The ability of the applicant to work the invention to the public advantage;
(v) The capacity of the applicant to undertake the risk in providing capital and working the invention, if the application for compulsory license is granted;
(vi) As to the fact whether the applicant has made efforts to obtain a license from the patentee on reasonable terms and conditions;
(vii) National emergency or other circumstances of extreme urgency;
(viii) Public non commercial use,
(ix) Establishment of a ground of anti competitive practices adopted by the patentee.
The grant of compulsory license cannot be claimed as a matter of right, as the same is subject to the fulfillment of conditions and discretion of the Controller of Patents. Further judicial recourse is against any arbitrary or illegal order of the Controller of Patents for of compulsory license.