Exam-06/01/2023 S.

hosssain

LAW COLLEGE DURGAPUR

3year, LL.B (HONS) SEMESTER V F.M. -80

SUBJECT-PATENT RIGHTS CREATION AND REGISTRATION

1. Patent Act was enacted in

A) 1968, B)1969, C)1970 D)2010
2. Which is not Patentable?
A) Atomic energy, B) Medicine, C)Food product ,D)All of the above
3. Following person/persons are entitled to apply for patents
A) A person claiming to be first inventor of the invention
B) A legal representative of the first inventor of the invention(if he
deceased)
C) Any person who is the assignee of the first inventor of the invention
D) All of the above
4. Every application for a patent shall be for _invention only
A)Two, B)Four, C) One, D) Three
5. How long is a patent valid in india?
A) 30 years, B)20 years, C) 40 years, D)60 years
6. What can be patented under patent Act 1970?
A) Plaing a game, B) An Invention C) A schemed, D) An aethetic creation
7. How many types of compulsory licenses are provided for under the Indian
Patent Act?
A)Two, B) Four, C) One, D) Three

8. Which section of the patent act 1970 deals with the Falsification of entries
in the register?
A) SECTION 100 OF THE PATENT ACT,1970
B) SECTION 110 OF THE PATENT ACT,1970
C) SECTION 109 OF THE PATENT ACT,1970
D) SECTION 119 OF THE PATENT ACT ,1970
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9. Which section of the patent act,1970 deals with the Definition of “patented
article and patentee”?
A) Section 87 of the patent act,1970
B) Section 82 of the patent act,1970
C) Section 89 of the patent act,1970
D) Section 89 of the patent act,1971

10.Which section of the patent act,1970 deals with Register of patents and
particulars to be entered therein?
A) Section 67 of the patent act,1970
B) Section 60 of the patent act,1970
C) Section 69 of the patent act,1970
D) Section 19 of the patent act,1970

11.Compulsory licenses for patents are granted as_

A) Voluntary, B) Implied, C) Virtual , D) Statutory

12.Rights of patentee are infringed by supplying substance commercially in_

A) Process patent, B) Product patent, C) Commercial patent, D) National
patent
13.Budapest Treaty provides for deposit of micro-organism with_
A) Controller of Patents, B) State Government , C) International Depository
Authority, D) Contracting States
14.Head office of patent is situated
A) Calcutta, B) Mumbai, C) Chennai, D)Delhi
15.Full form WTO-
A) World telegraph organization
B) World trade Organization
C) World territory Organization
D) None of the above
16.What Cannot be patented in India?
A) A computer program,
B) Scientific theory
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C) Mathematical method,
D) All of the Above

B-PART
1. What should be the content of the application?
The application is your opportunity to sell yourself as an excellent candidate
for the open position. Include specific examples of situations in which you
applied your experience, abilities and skills to benefit the organization. It is
also helpful to include data that supports your claims.
2. What is infringement of patent?
Patent infringement is the commission of a prohibited act with respect to
a patented invention without permission from the patent holder.
Permission may typically be granted in the form of a license.
3. What do you mean by Utility in patent?
A utility patent is an exclusive right granted for an invention, which allows
the right holder to prevent others from commercially using the protected
invention without his authorization for a limited period of time. Issued for
the invention of a new and useful process, machine, manufacture, or
composition of matter.
4. What is Bio-Patent?
Biopatent is a patent granted by the government to the inventor for
biological entities and for products obtained from them.
5. How surrender of Patent is done?
Section 63 of the Patents Act, 1970 allows a patentee to surrender a patent.
The patentee can offer to surrender his patent by giving notice to the
Controller. The offer to surrender the patent should be published by the
Controller, and every person interested in the patent must also be notified of
the same.
6. What do you mean by compulsory license?
Compulsory licensing is when a government allows someone else to
produce a patented product or process without the consent of the
patent owner or plans to use the patent-protected invention
itself.
7. What do you mean by licenses of right?
Licenses of rights means the patent proprietor can request for making an
entry in the Register of Patents maintained by Patent Office that the Patent is
available for license.
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9. What do you mean by Novelty in patent?

Novelty means "new compared to prior art"; it states the
requirement that, to be patentable, an invention must somehow
be different from all published articles, known techniques, and
marketed products.
10.What is patent specification?
A patent specification is a legal document that provides the
required public disclosure of the invention and sets out the
scope of the legal monopoly.
11.What is revocation of patent?
Patent revocation means cancellation of the rights granted to a
person by the grant of a patent. A patent can be revoked on
petition of any person interested or of the Central Government or
on a counter claim in a suit for infringement of the patent by the
High Court.
12.What do you mean by the term patent?
A patent is an exclusive right granted for an invention. In other
words, a patent is an exclusive right to a product or a process that
generally provides a new way of doing something, or offers a new
technical solution to a problem.
13.Write about Penalties of Infringement.
In the case of criminal copyright infringement, the minimum
punishment for an infringement of copyright is imprisonment for
six months with a minimum fine of Rs. 50,000/-. In the case of
a second and subsequent conviction, the minimum punishment is
imprisonment for one year and a fine of Rs. 1,00,000/-.
14.Write in brief about patent co-operation treaty
15. The Patent Cooperation Treaty (PCT) makes it possible to seek
patent protection for an invention simultaneously in each of a
large number of countries by filing an "international" patent
application. Such an application may be filed by anyone who is a
national or resident of a PCT Contracting State.
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16.Write about essentials of patent.

Patent applications must satisfy the following three criteria:

 Novelty. This means that your invention must not have been made public –
not even by yourself – before the date of the application.
 Inventive step. This means that your product or process must be an inventive
solution. ...
 Industrial applicability.

17.What is patentable invention?

Patentable inventions must be technological in nature, and
they must solve a technical problem. The subject matter may
be a process, method, device, product, or a new way to use
existing ones. Consequently, an idea or a theory alone cannot be
patented.

Part –C
1. What is patent a kind of property under the patent laws in India.

A patent protects the inventor‘s invention and new discoveries

that are new and non-obvious. There are three types of patents
and each type of patent protects a specific invention. However,
it is possible for one invention to have more than one type of
patent available for it. These three types of patents are
explained below-

1) Utility Patents

This type of patent covers processes, compositions of matter,

machines, and manufacturers that are new and useful. This is the most
common sort of patent that people seek. It can also be obtained for
new improvements to existing processes, compositions of matter,
machines, and manufacturers. As an Indian innovator looking to file a
utility patent, one can apply for utility patents in countries such as
Australia, UAE, China, Germany, France, and a number of other
countries within the European Union.
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2) Design Patents

Design Patent is defined as the "surface ornamentation" of an

object, and it can also include the shape or configuration of an
object. This type of patent can only be obtained where the
design is inseparable from the object. This type of patent only
protects the object‘s appearance. If an individual wants to
protect the functional or structural features of an object, he or
she must also file for a utility patent.

3) Plant Patents

Plant patents are often obtained to protect new and distinctive

plants. In order to obtain this type of patent are the plant is
should not a tuber propagated plant (i.e. an Irish potato), the
plant is should not found in an uncultivated state, and the plant
can be asexually reproduced. Asexual reproduction means that
instead of being reproduced with seed, the plant is reproduced
by grafting or cutting the plant. Like Utility patents, currently,
there is no provision for plant patents in India and you can
apply for the same in Australia, the USA, and several European
countries.

2. How an invention can be patentable?

Before a patent agent can begin drafting a patent application, it is
important to determine if the idea is patentable in the first place, An
invention relating either to a product or process that is new, involving
an inventive step and capable of industrial application can be patented.

Patentable subject matter in India

Invention must

 relates to a process or a product or both

 be new (Novel)
 involves an inventive step
 be capable of industrial application
 not fall under Section 3 and 4
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Patentability requirements of an invention

 Newness or novelty
 Inventive step or non-obviousness requirement
 Capable of Industrial application
 Enabling

3. Is copyright an alternative to Patent right?Discuss

Patent and copyright are the two different forms of intellectual
property rights. They usually render protection to something that
holds distinctive value and has a considerable impact on the outside
world. Copyright is limited to artistic work, whereas the patent is all
about protecting the inventions.
Until recently, copyright was not regarded as being of much relevance to the
software developers/inventors but things have changed drastically.
Copyrighting has become an extremely important weapon in preventing
piracy of computer software and preventing copying of various useful items
to which “art” has been applied. In this article, we have shed some light on
using Copyright as a legal option or an alternative to patents, for software
programs.
4. Write a short note on Appellate Board

The Intellectual Property Appellate Board, a quasi-judicial body, was

constituted in September 1958. The jurisdiction of the Copyright Board
extends to the whole of India. The Board is entrusted with the task of
adjudication of disputes pertaining to copyright registration,
assignment of copyright, grant of Licenses in respect of works withheld
from public, unpublished Indian works, production and publication of
translations and works for certain specified purposes. It also hears
cases in other miscellaneous matters instituted before it under the
Copyright Act, 1957.
The Copyright(Amendment)Act, 2012 which came into force w.e.f.
June 21,2015 provides for a full time IPAB Under Section 11 with
Chairman and two other memners,with its headquaters in Delhi.The
new full time IPAB is expected to be reconstituted shortly.
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5. Write a short note on patent Co-Operative Treaty.

The Patent Cooperation Treaty (PCT) is an international patent
law treaty, concluded in 1970. It provides a unified procedure for
filing patent applications to protect inventions in each of its contracting
states. A patent application filed under the PCT is called an international
application, or PCT application.
A single filing of a PCT application is made with a Receiving Office in one
language. It then results in a search performed by an International
Searching Authority, accompanied by a written opinion regarding
the patentability of the invention, which is the subject of the application.
It is optionally followed by a preliminary examination, performed by an
International Preliminary Examining Authority . Finally, the relevant
national or regional authorities administer matters related to the
examination of application and issuance of patent.
A PCT application does not itself result in the grant of a patent, since
there is no such thing as an "international patent", and the grant of patent
is a prerogative of each national or regional authority. In other words, a
PCT application, which establishes a filing date in all contracting states,
must be followed up with the step of entering into national or regional
phases to proceed towards grant of one or more patents. The PCT
procedure essentially leads to a standard national or regional patent
application, which may be granted or rejected according to applicable
law, in each jurisdiction in which a patent is desired.

6. Discuss the various grounds of revocation of patent.

Principally, Section 64 contains in-exhaustive grounds that dictate the conditions that
warrant the revocation of patents. These grounds are following:

1. Invention is obvious, lacks an inventive step or utility

2. Invention isn’t new and, has been publicly used or published in India before the
priority date or it is foreseen in light of the knowledge available within any
local or native community in India or elsewhere.
3. Either the party wasn’t entitled to the patent, or the subject isn’t patentable or
doesn’t amount to invention
4. The scope of patent specificationsis incomplete or the specifications have either
been already claimed in a patent that is granted
5. The patent was wrongfully obtained in violation of another party’s rights, such
as through incorrect or false representation, or leave to modify specifications
was obtained through fraudulent means.
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6. The information that has been disclosed under Section 8 is known to be false by
the Applicant or he has been unable to furnish the required details
7. Complete specification omits or erroneously attributes geographical origin or
biological matter used in the invention
8. The invention was either secretly used before the date or claim or the Applicant
contravened secrecy instructions under Section 35
9. The complete specification neither describes the invention and method
sufficiently nor does it disclose the best method of performing it which was
known and entitled protection.

7. Highlight the various remedies of infringement of patent.

Remedy for Infringement of Patent

An action for infringement must be instituted by way of a suit in any District Court or a High Court
having jurisdiction to entertain the suit.

The plaintiff on satisfying the court about infringement of his patent would be entitled to the following
relief:

1. Interlocutory injunction
2. Damages
3. Account of profits

Intelocutory Injunction

The Plaintiff may at the commencement of the action move for an interim injunction to restrain the
defendant from committing the acts complained of until the hearing of the action or further orders.
The plaintiff should make out a prima facie case and also show that the balance of convenience lies
in his favor.

Damages

In assessing the damages the important question is what is the loss sustained by the patentee. The
loss must be the natural and direct consequence of the defendants acts. The object of damages is to
compensate for loss or injury.

Accounts of Profits

Where a patentee claims the profits made by the unauthorised use of his patent, it is important to
ascertain how much of his invention was appropriated, in order to determine what proportion of the
net profits realized by the infringer was attributable to its use.
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8. Discuss in detail about software patent.

A software patent is a patent that protects computer
software. Software patents can cover a stand-alone
computer software program, a mobile device app, or
software that is integrated into a mechanical device. In
order for software to be patentable, it must meet the
same requirements of any other type of invention. In
particular, a software invention must be new, useful, and
non-obvious. A fourth requirement is that the invention
be of a type that is eligible for patent protection. While
this last requirement applies to all inventions, the
question of whether an invention is eligible is much more
impactful to software inventions than it is to other types
of inventions. n today’s digitally-connected era, software
assets are some of the most vital and valuable resources for
organizations. As such, these assets require protection in the
same way as any other intellectual property. Securing
software patent in India can be a bit tedious and time –
consuming journey. Especially because the area of patent
software is not straightforward. This is why you’ll benefit from
having a patent specialist by your side who can help you
understand the existing ambiguities in the process and come
up with a successful solution in your favour.
9. Difference between patentable Invention and Non-patentable
Invention.

Patentable Inventions
Without exception, if an item isn't in one of these categories, it is not patentable.
A patent for improvement does not include the improved upon object.

 Process - a method of creating a physical change in a material relating to

its character or quality.
 Machine - uses energy to complete a task.
 Manufacture - processes that create work.
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 Composition of matter - a compound created through two or more

elements.
 Improvement - new or improved element in a known invention.

Non Patentable Inventions

 Discovery, scientific theory, or mathematical methods
 Nonfunctioning products
 Scheme, rule or method for performing a mental task
 Informative presentations
 Medical/veterinary procedures and methods.

Perpetual motion machines aren't a proven design. Unethical/ immoral inventions

and software/business methods that aren't technical are non patentable.

10.Elucidate various powers of central govt. in the matter of patent

,How an appeal can be made?
The Indian Patent Act,1970(hereinafter Act) empowers the Central
Government to revoke any patent granted by the Indian Patent Office
if it feels that the said patent is prejudicial to public interest. There
are two provisions in the Patent Act, 1970 which empowers the
Central Government to revoke granted patents. One is Section 65 of
the Act which gives power to the Government to give directions to
the Controller to revoke a patent if the Government is satisfied that
the invention is one relating to atomic energy for which no patent
shall be granted. Another important provision related to the Central
Government’s power is Section 66 which empowers the Government
to revoke the patent if it feels that the mode in which it is exercised is
mischievous to the State or generally prejudicial to the public. In such
cases, the Central Government has the power to revoke the patent.
An appeal must be duly filed within the timeline given under the
Patents Act along with the required fee. The format must be followed
clearly stating the grounds for filing, and the appeal must be signed
by the Appellant. The procedure is not at all complicated.
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D-PART
1. Discuss the concept of novelty and non-obviousness of patent.
Patents can only be issued for new and non-obvious inventions.
While these requirements seem similar, they are two distinct tests.
Each requirement requires the examiner to compare the claims in the
patent application to the prior art. Prior art consists of anything that
is publicly available, such as patents, research papers, or products on
sale.

Novelty requires that your exact invention not already exist. A claim
will be rejected for lacking novelty if the examiner finds a single
piece of prior art that demonstrates each and every element of a
claim in the patent application. If you can show that your invention
is even slightly different than the cited prior art, then you can
typically overcome a novelty rejection.

Non-obviousness is the most difficult hurdle in obtaining a patent. A

patent will not be issued if a person skilled in the field would look at
all the prior art related to the invention (and all the other knowledge
in the world) and come up with the invention as an obvious
combination of things that already exist. While this sounds like a
challenging test, there are many ways around an obviousness
rejection, such as demonstrating that the invention has unexpected
characteristics.

When looking at novelty and non-obviousness, the important thing is

demonstrating how your invention is different than what is already
out in the world. You should focus on identifying the differences in
your invention from the prior art that will result in you obtaining a
patent.

2. What do you understand by compulsory licenses? What are

the grounds on which compulsory license on patent are
granted?
Compulsory license is an authorization granted by the
Government to someone else i.e., a third party to produce a
patented product without the consent of the patent owner
who has been taking undue advantage of exclusive rights
granted by patent.
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There are several provisions that remedy misuse of patents rights and provide legal framework to
the Office of the Controller General of Patents, Designs and Trade Marks generally known as the
“Indian Patent Office” to grant a compulsory license to a third party. For instance, under Indian
Patent Laws, a compulsory licensing can be granted after 3 years of getting a patent. Moreover,
the Indian Patent Office might grant a compulsory licence only if the use of the patented product
is not satisfying public requirements, or the patented product is not accessible to the public at a
reasonable price, or the patentee has not worked the patented product in India.. In other words,
compulsory licences will only be imposed when an innovation which could be greatly beneficial
to the public interest is not being used – or at least not sufficiently – by the patent owner.

Indian patent law however requires that number of criteria should be taken into consideration
when deciding whether a compulsory licence should be granted to a third party i.e., the applicant
for the compulsory licence. Some of the criteria which the Indian Patent Office considers include
for instance: if the third party has already approached the patent owner to obtain a licence, or
whether the third party has capabilities to meet public interest by manufacturing the patented
product, or the actual type of the invention and its benefits for the public.

3. Explain the rights and obligations of patentee.

Rights and Obligations of a patentee:

A patentee is said to be the one who is given exclusive rights and obligations
over their products which acts as an inspiring force for investment in creative
exercises in public at large for learning.

There are a few limitations and exceptions which are imposed upon the rights
and obligations of the patentee which can be stated as,

 Research or experimental utilization;

 Usage on outdoor vessels;
 Receiving administrative authorization from various professionals;
 Reduction of Patent rights and similar imports;
 Acquisition or use of inventions by the Government.

The term to hold a Patent remains to remain to be unaltered though there is the
presence of limitations or exceptions.

In India with the grant of the Patent, many rights are bestowed upon the
patentee under the Patent Act, 1970
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 Right to exploit the Patent

A patentee does possess an exclusive right to use, make, import, or sell for
these purposes related to the invention of a new product in India itself. It also
gives the right to use the method within the territories of India.

 Right to grant the license

A patentee poses the right of granting a license or entering into some

arrangement for some consideration. The license provided would only be
considered valid if only been in writing form and should be registered with the
Controller of the Patent. As per Section 69 (5) of the Patent Act, 1970, a
document of assignment of a Patent is not registered, it would not be admitted
as evidence of the title of the patent, and such a rule applies to the assignee,
and not the assignor.

 Right to surrender

A patentee through a notice of prescribed manner has the right to surrender a

Patent at any time at the patentee’s discretion. Such surrenders are advertised
through journals. The publication is done to allow the people so they can
oppose the offer of the surrender of the patentee. It is done when the patentee
seizes their non-performer of the Patent in the future and upon which they
decide to surrender the Patent.

 Right to sue for infringement

The patentee holds the right to sue for infringement of the Patent in the District
Court which has the jurisdiction to try the suit.

 Right to use and enjoy Patent

The Patent Act gives a patentee a distinctive right to exercise, make, utilize,
conveyor offers an article in India or the patented substance or to practice the
techniques associated with the inventions. The rights under it can be either
exercised by the patentee themselves or by their licenses or agents.
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4. Discuss the cases of infringement and the remedies

available for the infringement of patent.

Remedies for Infringement of Patents

Section 108(1) of the Patents Act provides for the remedies to the plaintiff in
case his patent rights have been infringed. In any suit for infringement, the
court may grant reliefs such as injunction and at the option of plaintiff, either
damages or an account of profits. These remedies are not cumulative but
alternative.

In addition, the court may also order that the goods which are found to be
infringing and materials and implement, the predominant use of which is in
the creation of infringing goods shall be seized, forfeited or destroyed, as the
court deems fit under the circumstances of the case without payment of any
compensation.

1. Injunction: It is a preventive civil remedy. It is of two kinds:

2. Temporary/ interlocutory injunction: It is limited to a specific period
or till the time the case is finally decided on merit. Relief by way of
interlocutory injunction is granted to mitigate the risk of injustice to the
plaintiff during the period before the uncertainty could be resolved. Its
object is to protect the plaintiff against injury by violation of his right for
which he could not be adequately compensated in damages recoverable
in the action if the uncertainty were resolved in his favor at the trial. An
interlocutory injunction is invoked by the court at the initial stages of
the suit filed by the plaintiff. This is passed in order to prevent the
defendant from getting further profits by using other patented
products. In order to invoke a temporary injunction, it is important for
the patentee to prove that the patent is valid by all terms and has been
infringed by the defendant. Also, the subsequent infringement of his
patent rights has caused irreparable loss to him.
3. Permanent injunction: A permanent injunction is invoked when the
case is finally decided by the court on merit. The interim injunction is
transferred to a permanent injunction if the defendant is found guilty of
patent infringement rights and the decision is on the side of plaintiff.
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But if the defendant is absolved from the liability and proved to be

innocent, then the interim injunction stands dissolved and is not
converted into a permanent injunction. It is limited to the duration of
the patent.

5. How an invention can be Patentable? Mention those

Inventions which are patentable.
It must be capable of being applied in any industry, which
means that the invention must have practical utility in order
to be patentable. These are the statutory criterion for the
patentability of an invention. Apart from this, another
important criterion for getting a patent is disclosure of an
enabling patent.

Patentable subject matter in India

Invention must

 relates to a process or a product or both

 be new (Novel)
 involves an inventive step
 be capable of industrial application
 not fall under Section 3 and 4
Patentability requirements of an invention

 Newness or novelty
 Inventive step or non-obviousness requirement
 Capable of Industrial application
 Enabling
An application for a Patent for an invention may be made by any of the following
persons either alone or jointly with any other person:

 The true and first inventor

 True and first inventor‘s assignee
 The legal representative of the deceased true and first inventor or his/her
assignee
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6. Write in briefabout Berne convention and patent

cooperation treaty.
The Berne Convention for the Protection of Literary and
Artistic Works, usually known as the Berne Convention,
was an international assembly held in 1886 in the Swiss city
of Bern by ten European countries with the goal to agree on
a set of legal principles for the protection of original work.
They drafted and adopted a multi-party contract containing
agreements for a uniform, crossing border system that
became known under the same name. Its rules have been
updated many times since then. The treaty provides
authors, musicians, poets, painters, and other creators with
the means to control how their works are used, by whom,
and on what terms. In some jurisdictions these type of
rights are being referred to as copyright.
The United States became a party in 1989. As of November
2022, the Berne Convention has been ratified by 181 states
out of 195 countries in the world, most of which are also
parties to the Paris Act of 1971.
The Berne Convention introduced the concept that
protection exists the moment a work is "fixed", that is,
written or recorded on some physical medium, its author is
automatically entitled to all copyrights in the work and to
any derivative works, unless and until the author explicitly
disclaims them or until the copyright expires. A creator
need not register or "apply for" a copyright in countries
adhering to the convention. It also enforces a requirement
that countries recognize rights held by the citizens of all
other parties to the convention. Foreign authors are given
the same rights and privileges to copyrighted material as
domestic authors in any country that ratified the
convention. The countries to which the convention applies
created a Union for the protection of the rights of authors in
their literary and artistic works, known as the Berne Union.
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The Patent Cooperation Treaty (PCT) is an

international patent law treaty, concluded in 1970. It
provides a unified procedure for filing patent
applications to protect inventions in each of its contracting
states. A patent application filed under the PCT is called
an international application, or PCT application.
A single filing of a PCT application is made with a Receiving
Office in one language. It then results in a search performed
by an International Searching Authority, accompanied by a
written opinion regarding the patentability of the invention,
which is the subject of the application. It is optionally
followed by a preliminary examination, performed by an
International Preliminary Examining Authority .Finally, the
relevant national or regional authorities administer matters
related to the examination of application and issuance of
patent.
A PCT application does not itself result in the grant of a
patent, since there is no such thing as an "international
patent", and the grant of patent is a prerogative of each
national or regional authority. In other words, a PCT
application, which establishes a filing date in all contracting
states, must be followed up with the step of entering into
national or regional phases to proceed towards grant of one
or more patents. The PCT procedure essentially leads to a
standard national or regional patent application, which may
be granted or rejected according to applicable law, in each
jurisdiction in which a patent is desired.