What a Patent Is, and What It Is Not

1The word 'patent' implies openness and accessibility. The term patent originated from the Latin term literae patentes (Letters Patent) which means 'open letters'. (Halsbury's Laws of England, vol 35, fourth edn, p 132, para 303, fn 1.) In Britain, it was so called as they were open and not sealed, bearing the Great Seal at the bottom and a proclamation from the sovereign to the subjects. The grant of a patent was a matter of the sovereign's grace. (Ibid, para 303.) Letters Patent were impressively worded documents that would 'strictly command all subjects' that they shall not, during the continuance of the term of the patent, 'make use of or put in practice the said invention'. Any disobedience was visited by sanction in the form of 'penalties as may be justly inflicted on such offenders' for their contempt of the Royal Command, apart from damages claimed by the patentee. (See General Tire & Rubber Company v Firestone Tyre & Rubber Company Ltd [1974] FSR 122 for an illustration of damages claimed in an action for infringement of patent.) The practice of issuing letters patent in Britain continued till the Patents Act 1977 came into force. However, in India, a statutory provision was made as early as 1911 by the Indian Patents and Designs Act 1911, where a patent was granted by the Controller under the provisions of the Act and not by the Sovereign ruler. Under the Patents Act 1970, the Controller grants the patent with the seal of the patent office and records the date on which the patent is granted. (The Patents Act 1970, s 43.)

2The Patents Act defines patent as a patent for any invention granted under the Act." (Ibid, s 2(1) (m).) An invention may relate to a new product or a process. A patent confers on the patentee a bundle of rights for a limited period which includes the right to exclude others from manufacturing, using, offering for sale, selling or importing the invention in India. (Ibid, s 48.) This limited exclusivity can be exercised for a period of 20 years, after which any person can exploit the rights held by the patentee.

3A patent offers a right capable of protection under the law. A patent does not give a positive right to its proprietor to use the invention, but rather only confers the right to exclude others from using the invention for a limited period of time. The right offered by a patent is a negative exclusionary right as it excludes others from using the subject matter of the patent. There could also be other restrictions imposed along with the grant of a patent. For instance, the grant of Exclusive Marketing Rights (EMR) for a drug is subject to the approval of the Controller General of Drugs to sell and distribute the drug. (EMR was a temporary right granted in anticipation of a patent. The transitory provisions relating to EMR were introduced by the Patents (Amendment) Act 1999 and subsequently omitted by the Patents (Amendment) Act 2005. The nature of right conferred by a patent is more manifest in cases of infringement. For protecting a patented invention, law does not, by itself, restrain others from using the invention. It is left to the patentee to initiate an infringement action against the infringer in the courts to protect its rights.

4Though a patent is a sort of monopoly granted by the state, it does not strictly fall within the definition of monopoly. (In its conventional usage, the term monopoly implies unreasonableness and unfairness which the law seeks to prevent. See the Monopolies and Restrictive Trade Practices Act 1969, s 2(i).) A monopoly refers to a privilege granted to a particular entity whereby the public at large is restrained from manufacturing or trading with the subject matter of the privilege which they had before. Since the patent is granted for an invention, which by definition has to be new, non-obvious and not known to persons skilled in the art, the aspect of restraining the public of a matter previously known to them will not apply to patents. The definition of an invention draws a distinction between a monopoly in an existing substance and monopoly granted for a patentable invention. (Philip W Grubb, Patents for Chemicals, Pharmaceuticals and Biotechnology: Fundamentals of Global Law, Practice and Strategy, OUP, 1999, p 7.) The word 'exclusivity' better describes the patent than the word 'monopoly'.

5Law casts a duty on the patentee to supply information relating to the patent. The grant of the monopoly is subject to fulfilling a two-fold duty. 'The first is to ensure that the monopoly granted by the patents extends no further than the invention which the applicant for the patent has made. The second is to ensure that the public shall, in return for the grant of the monopoly, be put in full possession of the way to carry out the invention in order that, after the patent has expired, they may enjoy to the full the benefit of that invention.' (Vidal Dyes Syndicate Ltd v Levinstein Ltd (1912) 29 RPC 245, pp 265-66, cited in American Cyanamid Company (Dann's) Patent (1971) RPC 425, p 443, [1970] FSR 443.) Normally, a patentee will not be entitled to a monopoly broader than what the patentee has invented. (Mullard Radio Valve Co v Philco Radio & Television Corporation (1936) 53 RPC 323, pp 345, 348, [1936] 2 All ER 920.)