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Exceptions On The Use of Patent by The Government With Respect To Section 47

Section 47 of the Patents Act provides a statutory exemption from patent infringement liability for the government. It allows the government to import, make, or have made patented products or processes for its own use. It also allows the government to make, use, vend, or import any medicine, medical equipment, or other equipment for use in public health centers owned or notified by the government. Two landmark cases interpreted the scope of Section 47 differently. In Garware Wall Ropes Ltd. v. AI. Chopra, the court found that Section 47 only applies to the government's direct use and not through third parties. However, in Chemtura Corporation v. Union of India, the court found that a third party acting strictly on the

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111 views2 pages

Exceptions On The Use of Patent by The Government With Respect To Section 47

Section 47 of the Patents Act provides a statutory exemption from patent infringement liability for the government. It allows the government to import, make, or have made patented products or processes for its own use. It also allows the government to make, use, vend, or import any medicine, medical equipment, or other equipment for use in public health centers owned or notified by the government. Two landmark cases interpreted the scope of Section 47 differently. In Garware Wall Ropes Ltd. v. AI. Chopra, the court found that Section 47 only applies to the government's direct use and not through third parties. However, in Chemtura Corporation v. Union of India, the court found that a third party acting strictly on the

Uploaded by

shreyanshi
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Exceptions on the use of Patent by the Government with respect to section 47

A patent granted under the provisions of the Patents Act, 1970, confers an exclusive right upon
the patentee to exploit their invention and to produce, sell or import the patented product or
process for the duration of the patent. However, this is not an absolute right, and certain
limitations have been stipulated in the Act. In this article, we will primarily be looking at Section
47. Section 47 provides that the grant of the patent is subject to certain conditions. Section 47
(1), (2), and (4) deal with governmental use and Section 47 (3) deals with
experimentation/research of the granted patents.

Section 47 and Governmental use

Section 47 provides a statutory exemption from patent infringement liability to the government.
Section 47 (1) and (2) states that the government may import, make, or have made on its behalf
any patented product or product made by a patented process ​“merely for its own use.” Section
47 (4) allows the government to make, use, vend, or even import any medicine or drug, medical
equipment, or other equipment for use or distribution in public health centers owned by the
government or notified by the government for that purpose. The scope of Section 47 is narrow in
comparison with other sections of the Act dealing with the governmental use of a patented
invention like Sections 100 and 101. Two landmark cases are determining the scope of Section
47.

In the case ​Garware Wall Ropes Ltd. v. AI. Chopra and Konkan Railway Corp. Ltd​.​, the
Bombay High Court, brought out the differences between Sections 47 and 100. The plaintiff
(appellant), in this case, Garware Wall Ropes Ltd. (patentee), filed an injunction against the
defendant to put an end to the manufacturing and selling of their patented products. The
defendant was A.I Chopra, who was making these products and selling them to Konkan
Railways under a contract. The defendant contended that since they were manufacturing and
selling the patented products only for the Konkan Railways, a Central Government department,
and that their contract had been signed on behalf of the President of India, it would fall within
the scope of Government use.

The Bombay HC stated that a government agency (third party) could use the patented invention
on behalf of the government on the payment of royalty/remuneration to the patentee based on a
contract or a license between the patentee and the third party under Section 100. However, under
Section 47, the use of the patented invention by the government is restricted merely to its own
use only. Therefore, a third party is not allowed to use the patented invention under this section.
Further, no royalty fee or other remuneration had to be paid to the patentee by the government
when it is using the patented invention for a sovereign purpose. The Bombay HC opined that the
government exemption under Section 47 would only be applicable to departments of the
government and government servants and agents only.

The Delhi High Court in ​Chemtura Corporation v. Union of India provided a different
interpretation of Section 47. The defendants, in this case, were the government of India and a
consortium of third parties who supplied products based on drawings provided to them by the
Railway Ministry on the basis of a contract. The plaintiff contended that Section 47 would not be
applicable to the consortium, and it would be liable for infringement as it was not a government
agency. The Delhi HC rejected this contention and stated the consortium (third party) was
strictly following the instructions and drawings provided by the Ministry and had no autonomy
concerning the product. Therefore, it opined that the consortium would fall within the scope of
the government exemption. These are the views that can be observed in the two landmark cases
concerning the government exemption in Section 47.

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