Who cannot apply for a Patent?

Section 6 of the Indian Patents Act states who can apply for a patent. Which inter alia include the true and the first inventor of the invention and an assignee of such person. This article briefly describes persons not entitled to a patent under the Act.

The Indian Patents Act 1970 does not specify persons entitled to apply for a patent under the Act. However, Section 6 of the Act states persons eligible to make an application for a patent. Therefore, we can interpret that only persons covered in Section 6 can apply for a patent, and those not covered by such a section cannot make such an application

Who is not eligible to apply for a patent? 

Section 6 of the Act states that only the following persons may make an application for a patent, either jointly or alone: 

  • the true and first inventor of the invention; 
  • the assignee of the true and first inventor of the invention; or
  • legal heir/ representative of the true and first inventor of the invention.

Therefore, any person who is not a true or first inventor or assignee or legal representative/ heir of such person cannot apply for a patent as Section 6 of the Act.

Who is a true and first inventor under the Act? 

The Act under Section 2(1)(y) defines ‘true and first inventor’ as one who “does not include either the first importer of an invention into India or a person to whom an invention is first communicated outside India.” However, the Act fails to define the word "inventor," and the methodology of defining such ‘inventorship’ is left for subjective interpretation.

However, in V.B. Mohammad Ibrahim vs. Alfred Schafrank (AIR 1960 Mys 173 at 175), it was held that “a person, such as a financial partner, who has not contributed any skill or technical knowledge towards the invention cannot be said to have any capacity to invent, and hence cannot be said to be the inventor.” 

Based on Indian Jurisprudence, the following persons cannot be named inventors for the provisions of Section 6: 

  1. A person who has not contributed to the idea that materialized into the invention;
  2. A person who has not contributed intellectually to the development of the invention;
  3. A person whose contribution to the invention was only technical, and such technical features are not novel. However, if the technical feature is novel, he may be named an inventor;
  4. A person who is just a financial contributor to the invention; 
  5. A person is just a contributor in conducting experiments or constructing apparatus etc., without providing intellectual inputs.

Who is the assignee under the Act?

The term "assignee" is defined under Section 2(ab) of the Act. It includes “an assignee of the assignee and the legal representative of the deceased assignee and references to the assignee of any person, including references to the assignee of the legal representative or assignee of that person.” 

Shining Industries vs. Sri. Krishna Industries (AIR 1975 All 231 at 234), it was held that “in the case of a person such as financial partner or employer or firm, an investor or an employee of a firm may assign the rights to the firm for making an application for patent and in such case, the firm can apply for a patent only as an assignee.”  

However, a person applying as an assignee must furnish proof of right to make the application while applying or within 6 months of filing as per section 7(2) of the Act.

From the above, it is clear that to apply for a patent; a person shall fall under one of the categories mentioned in Section 6 of the Act. If a person does not qualify for such requirements, he shall not be eligible to apply for a patent as per Section 6 of the Act.

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