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?
Invention is not patentable in India when the Invention is any one of the following
- Contrary to well-established natural laws
- Contrary to law
- Injurious to public health
- A mere discovery of a scientific principle
- The formulation of an abstract theory
- A mere discovery of any new property or new use for a known substance or process, machine or apparatus,
- 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
- A mere arrangement or rearrangement or duplication of known devices
- A method of agriculture or horticulture
- Inventions relating to atomic energy, are not patentable in India.
Infringement of Patent
Patent infringement proceedings can only be initiated after the grant of a patent in India but may include a claim retrospectively from the date of publication of the application for grant of the patent. Infringement of a patent consists of the unauthorized making, importing, using, offering for sale or selling any patented invention within the India. Under the (Indian) Patents Act, 1970 only a civil action can be initiated in a Court of Law. Further, a suit for infringement can be defended on various grounds including the grounds on which a patent cannot be granted in India and based on such defense, revocation of Patent can also be claimed.