What are the rights of patentees? — PatentGrasp

A patent gives the patentees exclusive rights over their patented invention. The exclusive rights of patentees means that the patentees can prevent others from exploiting their invention unless the patentee gives a consent to such exploitation.

Section 48 of Indian Patent Act describes the rights of patentees over their patented invention.

If the subject matter of a granted patent is a product, the patentee has the right to prevent others from making the product, using the product, selling the product, importing the product, or offering the product for sale.

If, however, the subject matter of the granted patent is a process, the patentee has the right to prevent others from using the patented process. The patentee additionally has the right to prevent others from selling a product obtained by using this process, importing a product obtained by using this process or offering such a product for sale.

Quick tip: Learn the rights of patentees using the code — — making, using, selling, importing and offering for sale (note the bold red letters in the above figure).

Therefore, if a third-party wants to make, use, sell, or import the patented product or a product obtained from a patented process, they have to seek the patentee’s consent. In fact, this forms the very incentive for the patentee to innovate and get a patent on their invention. The patentees can potentially license their invention to the third-party that intends to use (includes making, selling etc.) the patented invention.

What are the rights of patentees if there are multiple owners of the patent?

When a granted patent has multiple owners (assignees), the rights of each co-owner are governed by section 50 of the Indian Patent Act.

Following are the rights that each co-owner has on the patented invention if there are multiple owners:

1. Each co-owner has an equal and undivided share in the patent unless an agreement to the contrary exists. This essentially means that by default, each co-owner owns the patent equally unless the co-owners have a mutual agreement specifying their respective shares in the patent ownership.
2. Each co-owner is entitled to rights under section 48 (explained above), unless an agreement to the contrary exists or any instructions to the contrary are received from the Controller. This implies that each co-owner has the right to prevent third parties from exploiting the patenting invention on their own accord.
3. However, a co-owner cannot grant a license or an ownership share to a third-party without taking consent from other co-owners, unless an agreement to the contrary exists or any instructions to the contrary are received from the Controller. This means that although the co-owner can prevent others from exploiting the invention, they cannot grant a license without having other co-owners agree to the license grant.
4. If a co-owner sells a patented article to a purchaser, the purchaser is entitled to deal with the article in the same manner as if they would have bought it from a single owner of the patent.
5. Laws of movable property with respect to ownership and devolution also apply to patents. Patents are treated as movable assets in terms of law. Therefore, the same legal rules as movable property also apply to patents.

If there is any dispute between the co-owners, they can seek directions from the Controller to resolve the disputes.

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Originally published at https://patentgrasp.com on May 25, 2022.