World of Intellectual Property: A Comprehensive Guide to Patent and Compulsory Licensing in India

In the world of Intellectual Property Rights, patents serve as a keystone for the protection and innovation of inventions. However, to balance between innovation and accessibility. The concept of Compulsory licensing patents is a critical area of Intellectual Property Rights. The article will provide a comprehensive guide to Patent and Compulsory Licensing in India. Furthermore, the significance of compulsory licensing under patent law in India will be discussed.

Understanding of Patent

A patent is generally granted to an inventor by the government, giving them exclusive rights to their invention for 20 years. The exclusive right permits the patent holder to restrict others from making, selling, using, or importing their invention without permission. Patents have been granted in exchange for invention information as it helps advance technological knowledge and innovation by encouraging inventors to share their discoveries.

Patents are considered wider things in innovation like machines, products, compositions of matter, processes, and plant varieties of some kind. To attain a patent, an inventor must have to be fit the criteria such as:

• The invention must be novel;
• Non-obvious in nature; and 
• Useful in any industry.

Patent Registration Process 

Short Note on Compulsory License

A Compulsory License is a legal phenomenon, which permits a third party to sell, use, and make a patented invention without consent of the patent holder. It is mainly granted by the government authority of India or a court to protect the inventor’s rights and ensure the public interest if the patent holder is unwilling to meet the criteria for specific goods or services.

There are some necessary points regarding the Compulsory Licenses:

• Public Interest: The primary rationale for granting compulsory licenses to patents is to serve the public interest. This can include ensuring access to essential medicines, promoting competition, or addressing issues like anti-competitive behaviour or high pricing by the patent holder.
• Legal Framework: Compulsory licensing is typically governed by national patent laws, international agreements like the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the discretion of government authorities.
• Criteria for Grant: To obtain a compulsory license, the inventor must meet the criteria. These are demonstrating the patented invention is not being worked, is available at an unreasonable price, or that a national emergency or public health crisis exists.
• Compensation: The compulsory license permits the patented invention use without the consent of the holder. Then the patent holder is mainly entitled to compensation or royalties as use of their invention.
• Limited Scope: Compulsory licenses are typically granted for specific uses, periods, and territories, as determined by the issuing authority. They are not a complete revocation of the patent but a temporary and controlled use of the patented invention.
• Notification: In many cases, the patent holder must be notified and provided an opportunity to address concerns before a compulsory license is granted.

Status of Compulsory License in India

India has provisions for Compulsory Licenses under the Patent Act. The provisions, which are discussed about the compulsory license is Section 84 and 92 of the Indian Patent Act, 1970. These provisions permit the Government of India to provide a compulsory license patent in particular situations where the interests of the public are more critical than the exclusive rights of a holder. 

As per Section 84 of the Indian Patent Act, 1970, a patent holder can request the controller general of a patent to grant a compulsory license upon attaining a patent after three years from the date of a patent granted. There are certain conditions on which a compulsory license will be given:

• The patented invention is not being made available to the public at a reasonable price.
• The patented invention is not being worked in India.
• The inability of the patent holder to meet the demand for the patented product in India.

According to section 92 of the Patent Act, 1970, the compulsory license is granted by the central government for certain reasons such as:

• National emergencies;
• Second is exports, in case goods are used for exporting to another country, the government may provide a license in exceptional circumstances.

Benefits of Compulsory License in India

Several benefits of Compulsory Licensing in India:

• Promotion of Public Access: Compulsory licensing ensures that patented inventions are made available to the public when the patent holder is unwilling or unable to meet the demand. This can be critical in cases involving life-saving medicines, technologies, or other essential products.
• Affordability: Compulsory licensing can lead to lower prices for patented goods or services. It can be mainly significant for essential products such as medicines, where high costs can limit access for those who need them the most.
• Emergencies: In case of public health issues and national emergencies. Compulsory licensing can be a quick and potential manner to make sure the essential items like medicines, and vaccines, are readily available to address the urgent requirement.
• Balancing Intellectual Property Rights: This license will help maintain the balance between public interest and patent holders. It allows governments to ensure that patents do not hinder the availability of vital products or services.
• Development of Generic Medicines: This license is generally used in pharmaceuticals to provide the production of generic versions of patented medicines increasing the affordability and availability of these life-saving drugs.
• Public Welfare: It can provide huge products by addressing problems like anticompetitive behaviour, monopolistic pricing, or services from the public or withholding of significant technologies.
• Global Health Equity: Compulsory license contributes to the World Health Organization by making sure that people in developing countries may have medicines, and technologies, which might otherwise be unaffordable.

EndNotes

Comprehensive guidance is provided on the complexity of patent and compulsory licenses in India. In the article, we delved into the fundamental principles, along with the legal structure and practical implications of these intellectual property tools. As we know, patent has played a crucial role in safeguarding innovation, and development, and encouraging economic growth. On the other side, a compulsory license patent gives the security of goods and services in the context of the public, even if market forces hinder access. Last, but not least, the patents and compulsory licenses in India have a dynamic position with a deeper exploration of the intellectual property landscape.

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