solutions to ipr assignment

7/29/2019 solutions to ipr assignment

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Mukesh kumar NarayanUser id -mukesh 25053Ans 1. The rationale behind grant for patent protection are as follows:

( i)The exclusiveright to commercially exploit an invention provides the patent owner with the

legal right to stop others from making, using, or selling the patented (i.e. claimed) invention and

the right to collect damages for any such unlawful activity - so long as the patent (i.e. the claims)is not found invalid. Obtaining this exclusive right is the fundamental motivation for seeking a

patent and affords several benefits to the patent owner.

( ii) Most inventions involve considerable research and development (R&D)investment and

efforts. Patenting an invention serves to prevent competitors from simply copying or reverseengineering the invention and thereby appropriating those R&D efforts for their own benefit.

Furthermore, even if a competitor independently develops the same invention at a later stage, thepatent may be used to stop the competitor's entry into the market. Thus, a patent helps insure that

the payoff from R&D and the patent owner's competitive advantage are maximized.

(iii) Patents are also valuable for generating interest and investment in new and growingbusinesses. This is particularly important for companies attempting to establish themselves in

high-tech industries. Start-up companies are often based on the development of a specific new,

sometimes potentially ground-breaking, technology. Without securing rights for theirtechnology, these companies may find themselves unable to obtain sufficient resources to bring

that technology to market. Patents may also be licensed to other parties allowing these parties toexploit the invention in exchange for royalty payments.

( iv) A patent serves as a readily accessible public record of the innovative developments made

and owned by the patent owner. The existence of a patent may serve as a warning to competitors

to stay clear of a protected technology. In addition, a patent stakes out a patentee's technologicalterritory, precluding others who develop technology at a later stage from attempting to claim or

patent that technology as their own.

Ans 2. Section 3(d), non-patentable inventions are the mere discovery of a new form of a

known substance which does not result in the enhancement of the known efficacy of thatsubstance or the mere discovery of any new property or new use for a known substance or of themere use of a known process, machine or apparatus unless such known process results in a new

product or employs at least one new reactant.

Traditional knowledge is culturally oriented or culturally based, and it is integral to the cultural

identity of the social group in which it operates and is preserved. In India patenting traditional

knowledge is not allowed under the Patent law. According to section 3(p) of the Indian Patent


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act, an invention which, in effect, is traditional knowledge or which is an aggregation orduplication of knowledge properties of traditionally known component or components is no t

considered an invention under the act.

However, India has taken several measures for protecting traditional knowledge. India is party to

CBD. India has already enacted an act to provide for protection of biological diversity,sustainable use of components and equitable benefits arising out of the use of biologicalresources

India has initiated an attempt to document traditional knowledge in a written as well as electronic

form by means of peoples diversity register (PBR) and means of traditional knowledge digitalregister (TKDL) .TKDL allows access to patent offices around the world to search for prior art

in the traditional knowledge domain so that patents are not erroneously granted, thereby acting as

defensive tool against erroneously grant of IPR.

Ans 3. Revocation means cancellation of the rights granted to a person by the grant of a patent.

The patent can be revoked on petition of any person interested or of the Central Government or

on a counter claim in a suit for infringement of the patent by the High court or on the groundsmentioned under section 64.A patent granted by the controller may be revoked by High court except under section 65 and

section 66, in the following manner:

Under section 64 the following persons may petition the high court for revocation of patent,namely:

a) Any person interested

b) The central Governmentc) The person making a counter claim in a suit for the infringement of patent.

Section 64 enumerates various grounds on the basis of which petition can be filed for revocation

of patent .These grounds may relate to-a)patentee and his conduct, b)invention and his qualities,and c)description of invention.

Revocation of patent in relation to Atomic Energy (section 65)In case of inventions relating to atomic energy, section 4 clearly forbids grant of patent

.However, if any patent has been erroneously granted, the Central Government may direct the

controller to revoke the patent after giving opportunity of hearing to patentee.

Ans 4. The Patent cooperation Treaty is an international agreement for filing patent applications,

which has become in to force to enable to file a patent application under the treaty, so that aninvention can be protected simultaneously in a larger number of countries without losing the

rights of priority. The patent cooperation treaty (PCT) is a multilateral treaty entered into forcein 1978. Through PCT, an inventor of a member country (Contracting state of PCT) can

simultaneously obtain priority for his/her Invention in all/ any of the member countries, withouthaving to file a separate application in the countries of interest , by designating them in the PCT

application .India joined the PCT on December 7, 1998.

SIGNIFICANCE


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In order to protect your invention in other countries, you are required to file an independentpatent application in each country of interest; in some cases , within a stipulated time to obtain

priority in these countries .This would entail a large investment, within a short time, to meet

costs towards filing fees, translation, attorney charges etc. In addition you are making anassumption which, due to the short time available for making the decision on whether to file a

patent application in a country or not , may not be well founded .

Inventors of Contracting States of PCT on the other hand can simultaneously obtain priority for

their inventions without having to file separate application in the countries of interest ; thus

saving the initial investments towards filing fees, translation etc. In addition the system providesmuch longer time for filing patent application in member countries. The time available under

Paris Convention for securing priority in other countries is 12 months from the date of initial

filing. Under the PCT, the time available could be as much as minimum 20 and maximum 31

months. Further, an inventor is also benefited by the search report prepared under the PCTsystem to be sure that the claimed invention is novel. The inventor could also opt for preliminary

examination before filing in other countries to be doubly sure about the patentability of the

invention.

Ans 5.Infringement is an unauthorized or prohibited use of a right owners exclusive intellectual

property right, yet suffers through violation of law.

Relief available in an action for infringement are:

According to section 108 if the plaintiff is able to prove the infringement by defendant, the courtmay grant following reliefs:

a) Injunction whether interlocutory or final.b) Final Injunction.c) ) Damages or Account of profits.d) Delivery up or destruction of infringing goods.

a) Injunction: The plaintiff may at the commencement of the suit or any time during the

suit, move the court for grant of an interim injunction to restrain the defendant fromcommitting and continuing to commit the acts of alleged infringement.

b) Final Injunction: Such injunction is granted at the conclusion of the suit. The final

injunction will remain in force till the remaining term of the patent .But when the

infringement relates to a patent endorsed as license or right, no injunction will begranted if the defendant is willing to take a license.

c) Damages or of Profits: Plaintiff may be awarded either of the two. Both cannot be

awarded together. The damages may be awarded to compensate for the loss or injury

suffered by plaintiff due to the action of defendant. Whereas, the accounts of profits isdetermined on the basis of actual use of patentees invention by the infringer during the

period of commission of the act or infringement. However ,in cases where infringement


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was committed during lapse of patent or before date of amendment of specification, thedamages or accounts of profit may not be granted.

d) Delivery up or destruction of infringing goods: An order for delivery up or destructionis made with a view to prevent the defendant from making use of the infringing articles

which might be in his possession. It is discretionary order. The property in the articleswhich are made in violation of patent resides in the infringer though he is prevented from

using them.

CASE LAW:

M.C. jayasingh V.Mishra Dhatu Nigam Limited(MIDHANI)

Bajaj Auto Ltd. V. TVS Motor Company Ltd.

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solutions to ipr assignment