INTRODUCTION INTRODUCTION
A patent is granted to protect an article that is essentially better in some way than what was made A patent is granted to protect an article that is essentially better in some way than what was made before, or for a better way of making it. The monopoly a patent gives can extend to any other before, or for a better way of making it. The monopoly a patent gives can extend to any other
improved article or process that is better for the same reasons as that on which the patent is based. improved article or process that is better for the same reasons as that on which the patent is based. In an extreme case, a patent can be wide enough and represent a big enough advance over earlier In an extreme case, a patent can be wide enough and represent a big enough advance over earlier ideas to give its
ideas to give its owner a complete monopoly of an owner a complete monopoly of an industry. For Instance, there have been patentsindustry. For Instance, there have been patents giving for a time monopoly of transistors. Very few patents are as important as that, but the
giving for a time monopoly of transistors. Very few patents are as important as that, but the
existence of almost any patent will make it necessary for a competitor to do a design work or even a existence of almost any patent will make it necessary for a competitor to do a design work or even a major research work of his own rather than copy the actual product he wishes to imitate.
major research work of his own rather than copy the actual product he wishes to imitate.
A patent is a set of exclusive rights granted by a state (national government) to an inventor or their A patent is a set of exclusive rights granted by a state (national government) to an inventor or their assignee for a limited period of time in exchange for a public disclosure of an invention. The term assignee for a limited period of time in exchange for a public disclosure of an invention. The term ‘exclusive right’ is a de facto,
‘exclusive right’ is a de facto, non-tangible prerogative existing in law (that is, the power or, in anon-tangible prerogative existing in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to
wider sense, right) to perform an action or acquire a benefit and to permit or deny others the rightpermit or deny others the right to perform the same action or to acquire the same benefit. The term or time period of a patent is to perform the same action or to acquire the same benefit. The term or time period of a patent is the maximum period during which it can be maintained into force. It is usually expressed in number the maximum period during which it can be maintained into force. It is usually expressed in number of years either starting from the filing date of the patent application or from the date of grant of the of years either starting from the filing date of the patent application or from the date of grant of the patent. In most patent laws, renewal annuities or maintenance fees have to be regularly paid in patent. In most patent laws, renewal annuities or maintenance fees have to be regularly paid in order to keep the
order to keep the patent in force. Otherwise the patent lapses patent in force. Otherwise the patent lapses before its term.before its term.
An invention is a new composition, device, or process. It may be derived from a pre-existing model An invention is a new composition, device, or process. It may be derived from a pre-existing model or idea, or it could be independently conceived in which case it may be a radical breakthrough. or idea, or it could be independently conceived in which case it may be a radical breakthrough. Inventions often extend the boundaries of human k
Inventions often extend the boundaries of human k nowledge or experience. An invention that isnowledge or experience. An invention that is novel and not obvious to others skilled in the same field may be able to take the shape of a legal novel and not obvious to others skilled in the same field may be able to take the shape of a legal patent.
patent.
RIGHTS OF A PATENT OWNER RIGHTS OF A PATENT OWNER
A patent owner has the right to decide who may or may not use the patented invention for the A patent owner has the right to decide who may or may not use the patented invention for the period in which the
period in which the patent is protected. The patent owner may givpatent is protected. The patent owner may giv e permission to, or license othere permission to, or license other parties to use the invention on
parties to use the invention on mutually agreed terms. The owner may also mutually agreed terms. The owner may also sell the right or patent sell the right or patent toto another person who then becomes the new owner
another person who then becomes the new owner of the patent. Once the of the patent. Once the protection expires.protection expires. A patent lasts, so long as renewal fees are paid for it, 20 years f
A patent lasts, so long as renewal fees are paid for it, 20 years f rom the date when the fullrom the date when the full specification of the invention is filed at the Patent Office (this need not be the date of first specification of the invention is filed at the Patent Office (this need not be the date of first application for a patent). Patent protection however, does not become fully effective until the application for a patent). Patent protection however, does not become fully effective until the patent office grants it, although once ranted, damages can be held for the period between the patent office grants it, although once ranted, damages can be held for the period between the period of publication of the specification to 18 months from the date from when the patent is period of publication of the specification to 18 months from the date from when the patent is applied for). In order for a patent to be granted, the owner needs to respond to the Patent Office applied for). In order for a patent to be granted, the owner needs to respond to the Patent Office with their queries, and the mo
with their queries, and the more quickly he responds, the faster will re quickly he responds, the faster will his patent be granted.his patent be granted. PATENTABILITY
PATENTABILITY
Not every bright idea is patentable. The patentable invention has to be “ capable of industrial Not every bright idea is patentable. The patentable invention has to be “ capable of industrial application” including exploitation in agriculture, but excluding plant or animal varieties and “ application” including exploitation in agriculture, but excluding plant or animal varieties and “ essentially biological processes for the production of
essentially biological processes for the production of animals or plants”. Medical and vanimals or plants”. Medical and veterinaryeterinary treatments are not patentable: but drugs
There is also a list of matters excluded from patentability as being essentially intellectual, scientific theories, mathematical methods, computer programs, and aesthetic creation of all sorts.
The right to apply for a patent belongs to the owner of the i nvention, the inventor himself, or
anyone who can claim the invention from him. Other people can join in the application. Employees, as part of their jobs, make most inventions. In such cases the employer owns the invention and can apply to patent it, although he needs the inventors signature (unless the invention is a foreign one, and he is patenting it under the International Convention) or the inventor can make the application in which case he will be a sort of trustee of it, for his employer, or they may both apply together (when the inventor will still be a sort of trustee of his half share).
THE SPECIFICATION AND THE CLAIMS
The applicant must file at the patent office, document called a specification. This must contain a description of the apparatus or the process or the article, or whatever is to be the subject of t he patent. It must contain instructions that will enable a skilled person to work the process or make the apparatus or the article as the case may be. Often patents will contain a series of drawings as well. Most important of all, it must contain what are called ‘claims’ i.e. statements defining the precise scope of the rights of monopoly that the patent will give. There is only one way of fi nding out whether the owner of a patent can prevent the manufacture or sale of a particular imitation of his patented product, and that is by looking up his specification and seeing whether the words of the ‘claims’ describes that imitation.
LICENSING
If a patent is valid, the manufacture, importation, sale or use of a patented article is each only lawf ul of the patentee gives the permission for them. Such permission is what he is what is known as
“license”. Subject to the exceptions below, a patentee can charge what he likes for the exercise. For those who do not wish to manufacture for themselves, this is the normal way of making money from a patent.
Limits on what can be done by way of licensing and exploitation
Not every sort of limitation or condition though is allowed. First, there are rules about free
circulation: once a patented article has been put on the market by the owner of the patent or with his license, he cannot stop its subsequent sale anywhere in that country. This means that in
particular, that although it may be allowed to restrict a license to manufacturing under the patent only in that country, the patent cannot be used to stop things he makes being sold throughout the country. Even a license to manufacture in a single country only has to comply with some complex and not very comprehensible regulations in order to satisfy the country’s regulations.
Next, there are the limits that competition law imposes what can be done with patents (and other IP rights).
REQUIREMENTS FOR FILING A PATENT IN INDIA
1. Full name, address & nationality of applicant (s) and inventor (s). 2. Specification, provisional / complete drawings , claims and abstract.
3. List of countries to claim priority , if any, where the application / applications for the grant of patent has / have been filed , alongwith date and application number
4. Power of attorney. 2. DEFINING THE UNDEFINED
As the famous saying of Lord Hewart, CJ goes “It … is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (Simo n James and Chantal Stebbings, 1997). It is from this concept that judicial ac tivism emanated and found
expression through judgments of various so-called “activist” judges. They have been responsible for taking justice to the doorsteps of the citizens, if necessary, through an unwarranted and uncalled for measure. By stretching the letter of the law a little and acting according to the spirit behind it, the judiciary has intervened in cases where there is blatant misuse of discretion of executive authority or
a lackadaisical attitude towards booking the corrupt and other anti-social elements in society. One of the meanings of judicial activism is that the function of the court is not merely to
Electronic copy available at: http://ssrn.com/abstract=1156979 Electronic copy available at: http://ssrn.com/abstract=1156979
interpret the law but to make it by imaginatively sharing the passion of the Constitution for social justice (Sukh Dass v. Union Territory of Arunachal Pradesh, Sheela Barse v. Union of India).
CONCEPT OF JUDICIAL ACTIVISM: THE VARIOUS THEORIES
As far as the origin and evolution of judicial activism go, there are two theories behind the whole concept. They are: (i) Theory of Vacuum Filling and (i i) Theory of Social Want.
Theory of Vacuum Filling
The Theory of Vacuum Filling states that a power vacuum is created in the governance system due to the inaction and laziness of any one organ. When such a vacuum is formed, it is against the good being of the nation and may cause disaster to the democratic set up of the country. Hence, nature does not permit this vacuum to continue and other organs of governance expand their horizons and take up this vacuum. In this case, the vacuum is created by the inactivity, incompetence, disregard of law, negligence, corruption, utter indiscipline and lack of character among the two organs of
governance viz. the legislature and the executive (Subhash C. Kashyap, 1997). Hence the remaining organ of the governance system i.e. the judiciary is left with no other alternative but to expand its horizons and fill up the vacuums created by the executive and the legislature. Thus according to this theory, the so-called hyper-activism of the judiciary is a result of filling up of the vacuum or the void created by the non-activism of the legislature and the executive.
The Theory of Social Want states that judicial activism emerged due to the failure of the existing legislations to cope up with the existing situations and problems in the country. When the existing legislations failed to provide any pathway, it became incumbent upon the judiciary to take on itself the problems of the oppressed and to find a way to solve them. The only way left to them within the framework of governance to achieve this end was to provide non-conventional interpretations to the existing legislations, so as to apply them for greater good. Hence emerged judicial activism. The supporters of this theory opine that “judicial activism plays a vital role in bringing in the societal transformation. It is the judicial wing of the state that injects life into law and supplies the missing links in the legislation… Having been armed with the power of review, the judiciary comes to acquire the status of a catalyst on change.” (Shailja Chander, 1998)
JUDICIAL ACTIVISM IN INDIA: ITS ORIGIN AND DEV ELOPMENT
For a very long time, the Indian judiciary had taken an orthodox approach to the very concept of judicial activism. However, it would be wrong to say that there have been no incidents of judicial activism in India. Some scattered and stray incidents of judicial activism took place from time to time. But they did not come to the limelight as the very concept was unknown to India. However, the history of judicial activism can be traced back to 1893, when Justice Mehmood of the Allahabad High Court delivered a dissenting judgment which sowed the seed of activism in India. It was a case of an under-trial who could not afford to engage a lawyer. So the question was whether the court could decide his case by merely looking at his papers (Justice J. S. Verma, 1996). Mehmood held that the pre-condition of the case being ‘heard’ (as opposed to merely being read) would be fulfilled only when somebody speaks. So he gave the widest possible interpretation of the relevant law and l aid the foundation stone of judicial activism in India.
Judicial activism as the modern terminology denotes, originated in India much later. This origin can be traced to the Theory of Social Want. It was due to executive abuses and excesses that the
judiciary had to intervene during the course of legal proceedings. Let us look into the rationale behind such intervention. After independence from the R aj, the executive has always looked upon the judiciary as a hostile branch of the State. This view gained more momentum and popularity when the bureaucracy degenerated into a system for personal and not public gains. Exploitation and corruption became inbuilt in the present political system. The masses were oppressed beyond
imagination by the unbridled actions by Money power, Muscle power, Media power and Ministeri al power (B. Venkatachalapathi, 1998). In this scenario, some emergency situations arose which could not wait for the Parliament for its looking into. Hence, it became a responsibility of the judiciary to do something to provide relief to the oppressed masses of the society. In Sunil Batra v. Delhi
Administration, AIR 1978 SC 1548, Justice V. R. Krishna Iyer described the situation in the following words: “Though legislation was the best solution, but when lawmakers take for far too long for social patience to suffer. Courts have to make do with interpretation and curve on wood and sculpt on stone without waiting for the distant marble.” Therefore, in the historic case of Mumbai Kamghar Sabha v. Abdul Bhai, AIR 1976 SC 1465, the Apex Court introduced the doctrine of judicial activism, though without the nomenclature. The theory of judicial activism received impetus in the case of Maneka Gandhi v. Union of India, AIR1978 SC 853, where the Apex Court substituted the due process clause in Article 21 instead of ‘procedure established by law’ in order to bypass the
carried on with the task of unearthing many scams, providing justice to the citizens and also to enhance their rights.
