What acts are not to be considered as Patent infringements?

Generally, patents provide an absolute right to the patent owner for the usage of the patented invention for manufacture, selling, and marketing, and any third party using that is considered to be a violation of the patent. However, there are certain exceptions where a third party can use the patented inventory without amounting to patent infringement.

What is the exception to the infringement of patents?

The concept of exception to patent is sourced from a well-known old provision- a patent is a void on the grounds that it is inconvenient to the citizen and does not comply with the regional law.  

The TRIPS agreement aims to protect intellectual property in trade and grants exclusive rights to patent holders. India is one of the signatories to the World Trade Organization, which levies exceptions and limitations to patent rights in compliance with Article 30 of the TRIPS.

Article 30 provides member states with certain exceptions to be conferred on a patent holder that does not amount to the exploitation of exclusive patent rights. It also does not oppose the interests of the patentee or any other persons in the patent.

What are the exceptions that do not amount to infringement of the patent?

The Indian Patent Act 1970 has complied with article 30 of the TRIPS agreement to confer exceptions that do not unfairly prejudice the interests of the patent owner or another person having a valid interest in it:

Exception One: Exception for private and non-commercial use of patent

Generally, the patent is not allowed for private use or has a monopoly over the relevant commercial activities. If the patent is not profiting, the government can grant a compulsory license to any third party to make the use of the patented invention for profit. Compulsory licensing limits the patent holder's rights and prevents any activity hurting the public using the patented invention.

The Indian Patent Act 1970 enforces the concept of a compulsory license for the private and non-commercial use exception under the provisions of 

  • Sec. 84: Compulsory licenses
  • Sec. 85: Repudiation of patents by the Controller for inactivity
  • Section 92: Special provision for compulsory licenses on notifications by Central Government

Exception Two: Exceptions in experimental and scientific use

Exceptions are granted for the experimental and scientific use of the patented inventory. The exception is regulated by Sec. 47 of the Patents Act 1970. This exception is popular due to its prevention of patent rights from hampering its experiments and scientific activities that are bona fide. The protection for the bona fide experiment initiates the exception that provides a right to a third party to carry out the scientific activities related to the patent and remain protected from patent infringement.

Exception Three: Exception in prior use

This exception is known as Bolar Provision because the statute created an exemption to the patent rights that enables the manufacture of generic drugs. The manufacturer has to follow certain rules in such exception that the information relevant to the development, marketing and other important activities should be submitted to the patent holder. This exception was introduced by the Indian Patents (Amendment) Act 2005 under sec. 107A.

Exception Four: Exceptions to foreign vessels, aircraft, or land vehicles

India, a party to the Paris Convention, compulsorily complied with this exception following Article 5 of the Paris Convention, and therefore, sec. 49 of the Act regulates it as prescribed. The provision does not infringe the patent rights when patented inventions are used exclusively for the needs of foreign vessels, aircraft, or land vehicles and other accessories thereof, when such foreign vessels, aircraft, or land vehicles temporarily or accidentally come into India.

Is the exception to patent infringement a worthy provision?

A Patent on an invention awards the right on the patentee to prohibit others from manufacturing, using, trading, offering for sale in the province of patent grant or importing an invention into the region of patent grant for a specified time, in return for the public disclosure of the invention. The provision of exceptions to patent infringement under Article 30 of the TRIPS agreement controls monopoly and uncompetitiveness.

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