Chapter 8 : The Patent Act,1970

CHAPTER VIII: GRANT OF PATENTS AND RIGHTS CONFERRED THEREBY

This chapter explains what happens when all the examination and opposition hurdles are cleared and your invention is finally ready to become a patent.

Section 43: Grant of patents

(1) What it says: Where an application… has been found to be in order for grant… and either— (a) the application has not been refused… or (b) the application has not been found to be in contravention of… this Act, the patent shall be granted as expeditiously as possible… with the seal of the patent office and the date on which the patent is granted shall be entered in the register.
- In plain English: This says that once your application is “in order for grant” (meaning you’ve passed examination and paid the final fees) AND it hasn’t been refused or opposed, the Controller will grant you the patent.
- The grant is made “as expeditiously as possible” (as fast as they can). The official patent document (the “Letters Patent”) will be issued with the seal of the Patent Office, and the date of the grant is entered into the official public record (the “register”).
- Real-world example: You’ve successfully argued against all the examiner’s objections. The Controller sends you a “Notice of Allowance.” You pay the grant fee. A few weeks later, the Controller officially “grants” the patent on October 25, 2024. This date is recorded in the register, and you are issued your patent certificate.
(2) What it says: On the grant of patent, the Controller shall publish the fact that the patent has been granted and thereupon the application, specification and other documents… shall be open for public inspection.
- In plain English: The moment the patent is granted, the Controller publishes this fact in the official Patent Office Journal.
- From this day forward, your entire file history (the “file wrapper”), including your application, the examination reports, your replies, and all other related documents, becomes fully open to the public for inspection. (This is separate from the application’s publication, which happened at 18 months).

Section 44: Amendment of patent granted to deceased applicant

This section is a “fix-it” rule for a sad and specific situation.

What it says: Where… the Controller is satisfied that the person to whom the patent was granted had died… before the patent was granted, the Controller may amend the patent by substituting… the name of the person to whom the patent ought to have been granted…
- In plain English: Imagine an inventor, Mr. Sharma, files a patent application in 2020. He sadly passes away in 2023. The Patent Office, not knowing this, grants the patent in his name in 2024.
- This section allows Mr. Sharma’s legal heirs (e.g., his son or daughter) to go to the Controller, provide the death certificate and will, and have the patent amended.
- The Controller will then re-issue the patent in the name of the legal heir. The law then treats the patent as if it had been granted to the heir in the first place.
- Real-world example: The patent is granted to “Mr. Sharma.” His daughter, Priya, provides legal proof that she is the heir. The Controller amends the patent so the grantee is “Ms. Priya.” She now has the full, back-dated rights to sue for infringement and collect royalties.

Section 45: Date of patent

This is one of the most important sections in the entire Act. It defines the start of your 20-year patent term.

(1) What it says: Subject to the other provisions contained in this Act, every patent shall be dated as of the date on which the application for patent was filed.
- In plain English: Your 20-year patent term does NOT start on the day it is granted. It starts on the day you filed your application. This is your “date of patent.”
- Real-world example:
  - You file your application on: May 1, 2021. (This is the “Date of Patent”)
  - The patent is finally granted on: October 25, 2024.
  - Your 20-year term is NOT 2024 + 20 = 2044.
  - Your 20-year term is May 1, 2021 + 20 years.
  - Your patent will expire on: May 1, 2041.
(2) What it says: The date of every patent shall be entered in the register.
- In plain English: This all-important filing date (the “date of patent”) is officially recorded in the public register for everyone to see.
(3) What it says: Notwithstanding anything contained in this section, no suit… shall be commenced or prosecuted in respect of an infringement committed before the date of publication of the application.
- In plain English: This is a major limitation. Even though your 20-year rights start from the filing date, your right to sue people for infringement (and claim damages) only starts from the date your application was published (which usually happens 18 months after filing, as per Section 11A).
- Real-world example (using the dates above):
  - Filing Date: May 1, 2021
  - Publication Date: November 1, 2022 (18 months later)
  - Grant Date: October 25, 2024
  - A competitor (Rival Corp) starts copying your invention on Jan 1, 2022. You cannot sue them for this.
  - Rival Corp continues copying on Dec 1, 2022. This is after publication. You can claim damages for this… but only after your patent is granted.
  - On Nov 1, 2024 (after your patent is granted), you can finally file a lawsuit and claim damages for all infringement that happened after the Nov 1, 2022 publication date.

Section 46: Form, extent and effect of patent

(1) What it says: Every patent shall be in the prescribed form and shall have effect throughout India.
- In plain English: The patent certificate you receive will be in an official, standardized format (the “prescribed form”).
- Your patent rights are valid everywhere in India, but only in India. A patent is a territorial right.
- Real-world example: You are granted an Indian patent for a new bicycle gear system. This means you can stop anyone in Mumbai, Delhi, or any other part of India from making or selling it. However, your Indian patent gives you zero rights in China or the USA. You would need to file for and be granted separate patents in those countries to have rights there.
(2) What it says: A patent shall be granted for one invention only…
- In plain English: One patent application = one invention. You cannot bundle three different, unrelated inventions into a single application to save money. (This is related to Section 16, which allows “divisional applications” if you accidentally file for more than one).
- Real-world example: You invent a new type of keyboard and also a new coffee brewing method. You must file two separate patent applications.
(2) Proviso: …Provided that it shall not be competent for any person in a suit or other proceeding to take any objection to a patent on the ground that it has been granted for more than one invention.
- In plain English: This is a legal shield for the patentee. It means that if the Controller does make a mistake and grants you a patent that technically contains two inventions, a competitor cannot use that as a defence in an infringement lawsuit.
- Real-world example: You sue a company for infringing your patent. Their lawyer cannot stand up in court and say, “This patent is invalid because it covers both a keyboard and a coffee maker!” That is not a valid argument for revoking a patent.

Section 47: Grant of patents to be subject to certain conditions

This is a critical section. It lists the major exceptions to your patent rights. Your patent is granted subject to these conditions, meaning these are things that do not count as infringement.

(1) What it says: …any machine… or any article made by using a process… may be imported or made by… the Government for the purpose merely of its own use;
- In plain English: The Government (Central, State, or a Government-owned company) can make or import your patented product for its own use only without your permission.
- Real-world example: You have a patent for a new, super-efficient water filter. The Indian Railways (a government undertaking) can manufacture these filters for their own use in their train stations and offices. They cannot, however, start selling them to the public.
(2) What it says: …any process… may be used by… the Government for the purpose merely of its own use;
- In plain English: This is the same rule, but for a patented process. The Government can use your patented method for its own purposes.
- Real-world example: You have a patent on a new, faster process for testing soil contamination. A State Government’s environmental protection agency can use your process for its own internal testing and surveys.
(3) What it says: …any machine… or… any process… may be made or used… by any person, for the purpose merely of experiment or research including the imparting of instructions to pupils;
- In plain English: This is the vital “research exception” (also known as “Bolar provision” in some contexts, though that’s more specific). Anyone (a university, a competitor, an individual) is allowed to make or use your patented invention for the purpose of scientific experiment, research, or teaching.
- Real-world example: A pharmaceutical company has a patent on a new cancer drug. A rival company is allowed to make that same drug in its lab for R&D purposes—for example, to study how it works, see if they can improve it, or use it as a benchmark while developing a different drug. A university professor is allowed to synthesize the drug in a lab to teach students about its chemical structure.
(4) What it says: …in the case of a patent in respect of any medicine or drug, the medicine or drug may be imported by the Government for the purpose merely of its own use or for distribution in any… hospital or… medical institution… maintained by… the Government…
- In plain English: This is a specific health-related exception. The Government can import a patented medicine from a cheaper source (e.g., a generic version from another country) for use in its own hospitals (like military hospitals, public district hospitals, etc.) or for distribution through its own public health programs.
- Real-world example: A company has a patent in India for a vital new HIV drug, making it very expensive. The Government can import a generic version of that drug to give out for free or at a subsidized rate through its network of public hospitals.

Section 48: Rights of patentees

This is the most important section defining your “exclusive rights.” It tells you what you can stop other people from doing.

What it says: …a patent granted under this Act shall confer upon the patentee—
- In plain English: Your patent gives you the following exclusive rights:
(a) Where the subject matter… is a product: …the exclusive right to prevent third parties, who do not have his consent, from the act of making, using, offering for sale, selling or importing for those purposes that product in India;
- In plain English (for a PRODUCT patent): You get the exclusive right to stop anyone else from:
  1. Making your product.
  2. Using your product.
  3. Offering to sell your product.
  4. Selling your product.
  5. Importing your product into India.
- Real-world example: You have a product patent on a new design for a “Smartwatch X”. Without your permission, no other company can make Smartwatch X, use it in their business, advertise it for sale, sell it in an Indian store, or import it from China to sell in India.
(b) Where the subject matter… is a process: …the exclusive right to prevent third parties, who do not have his consent, from the act of using that process, and from the act of using, offering for sale, selling or importing… the product obtained directly by that process in India:
- In plain English (for a PROCESS patent): This is a two-part right. You get the exclusive right to stop anyone else from:
  1. Using your patented process (method).
  2. Using, selling, or importing the product that is made directly from that process.
- Real-world example: You invent a new “Method Y” for making high-strength, low-cost plastic. You get a process patent. You can stop a rival company from using Method Y.
- More importantly: If that rival uses Method Y in another country (where you don’t have a patent) to make the plastic, you can still stop them from importing and selling that plastic in India, because it is the “product obtained directly by that process.”

Section 49: Patent rights not infringed when used on foreign vessels etc., temporarily or accidentally in India

This section covers a specific exception for international transport.

(1) What it says: Where a vessel or aircraft registered in a foreign country… comes into India… temporarily or accidentally… the rights… shall not be deemed to be infringed by the use of the invention—
- In plain English: Your patent is not infringed if your invention is just passing through India on a foreign ship, plane, or vehicle.
(1)(a): …in the body of the vessel… or… accessories thereof, so far as the invention is used on board the vessel and for its actual needs only; or
- In plain English: Your patent on a new ship’s engine is not infringed by a foreign-registered ship that uses that engine to sail into an Indian port for 3 days. It’s on board for the “actual needs” of the ship.
(1)(b): …in the construction or working of the aircraft or land vehicle or… accessories thereof…
- In plain English: Your patent on a new type of landing gear is not infringed when a foreign airline’s plane, equipped with that gear, lands at an Indian airport.
- Real-world example: You have a patent on a new GPS navigation system. A German truck driver, whose truck is registered in Germany and uses your system, drives into India to make a delivery. He is not infringing your patent, as this is a temporary and incidental use.
(2) What it says: This section shall not extend to vessels, aircrafts or land vehicles owned by persons… in a foreign country the laws of which do not confer corresponding rights…
- In plain English: This is a reciprocity clause. This “passing through” exception is only given to ships/planes from countries that give the same exception to Indian ships/planes.
- Real-world example: If Country X does not respect Indian patents on its ships (and would, for example, seize an Indian ship in its port for patent infringement), then India will not grant this exception to ships from Country X.

Section 50: Rights of co-owners of patents

This section lays out the rules for when a patent is owned by more than one person or company (joint patentees).

(1) What it says: …each of those persons shall, unless an agreement to the contrary is in force, be entitled to an equal undivided share in the patent.
- In plain English: If two people (A and B) are joint owners, they each own 50% by default. If three people (A, B, and C) are owners, they each own 33.3%. This can be changed by a private legal agreement.
(2) What it says: …each of those persons shall be entitled, by himself or his agents, to rights conferred by section 48 for his own benefit without accounting to the other person or persons.
- In plain English: This is the most important rule. Each co-owner can independently make, use, and sell the patented invention for their own profit, and they do not have to share their profits with the other co-owners.
- Real-world example: Priya and Rohan are co-patentees. Priya starts a company, makes the invention, and earns ₹5 Crore in profit. Rohan cannot demand ₹2.5 Crore from her. He is free to start his own company to compete with her, but he can’t demand her profits.
(3) What it says: …a licence under the patent shall not be granted and share in the patent shall not be assigned by one of such persons except with the consent of the other person or persons.
- In plain English: While a co-owner can use the invention themselves, they cannot license it to a third party or sell their share of the patent without getting the written permission of all other co-owners.
- Real-world example: Priya (from the example above) wants to license the patent to BigCorp in exchange for royalties. She must get Rohan’s consent first. If Rohan says “no,” she cannot grant the license.
(4) What it says: Where a patented article is sold by one of… co-owners… the purchaser… shall be entitled to deal with the article in the same manner as if the article had been sold by a sole patentee.
- In plain English: If a customer buys the product from one of the co-owners, they own the product free and clear. The other co-owner cannot sue the customer.
- Real-world example: A customer buys the invention from Priya’s company. Rohan (the other co-owner) cannot sue that customer for patent infringement.
(5) What it says: …the rules of law applicable to the ownership and devolution of movable property generally shall apply in relation to patents…
- In plain English: A patent is treated like “movable property” (like a car or a piece of jewelry, not like land). This means it can be inherited (through a will), seized by creditors in bankruptcy, etc.
(6) What it says: Nothing in this section shall affect the rights of the assignees of a partial interest in a patent created before the commencement of this Act.
- In plain English: This is a “grandfather” clause, simply stating that any joint-ownership deals made before this Act (1970) are still valid under their original terms. This is no longer relevant for new patents.

Section 51: Power of Controller to give directions to co-owners

This section sets up the Controller as a mediator or decision-maker when patent co-owners (who we learned about in Sec. 50) can’t agree.

(1) What it says: Where two or more persons are registered as… proprietor… the Controller may, upon application… by any of those persons, give such directions… as to the sale or lease of the patent… the grant of licenses… or the exercise of any right… as he thinks fit.
- In plain English: If co-owners are in a dispute, one of them can apply to the Controller. The Controller can then issue binding directions on things like:
  - Forcing the sale or lease of the patent.
  - Forcing the grant of a license to a third party.
  - Deciding how the co-owners can use the patent.
- Real-world example: Priya and Rohan are co-owners. Priya wants to license the patent to BigCorp, but Rohan refuses (as is his right under Sec. 50). Priya believes Rohan is being unreasonable and harming the patent’s value. She can apply to the Controller, who can investigate and force the license to be granted if he agrees it’s the right move.
(2) What it says: If any person… fails to execute any instrument or to do any other thing required… within fourteen days… the Controller may… give directions empowering any person to execute that instrument… in the name and on behalf of the person in default.
- In plain English: This gives the Controller’s directions real power. If the Controller orders Rohan to sign the license agreement for BigCorp and he refuses for 14 days, the Controller can then appoint someone else (like an officer of the patent office) to legally sign the document on Rohan’s behalf.
- Real-world example: The Controller orders the license to BigCorp. Rohan must sign by March 15th. He doesn’t. On March 16th, Priya can apply to the Controller, who can then direct an official to sign the contract. The contract is now 100% legal and binding, even without Rohan’s signature.
(3) What it says: Before giving any directions… the Controller shall give an opportunity to be heard… (a) …to the other person or persons… (b) …to the person in default.
- In plain English: The Controller cannot act as a dictator. Before making any decision under this section, he must give all other co-owners (and the person who refuses to sign) a fair chance to present their side of the story.
(4) What it says: No direction shall be given… which is inconsistent with the terms of any agreement between persons registered as… proprietor of the patent.
- In plain English: This is a crucial limit. If the co-owners already have a private legal agreement (a “patent ownership agreement”), the Controller cannot override it.
- Real-world example: If Priya and Rohan’s private contract explicitly states, “No licenses shall ever be granted to BigCorp,” then Priya cannot use this section to get the Controller to force such a license. The existing contract wins.

Section 52: Grant of patent to true and first inventor where it has been obtained by another in fraud of him

This section is about justice—what happens when someone steals an invention and patents it, and the true inventor finds out.

(1) What it says: Where the patent has been revoked… on the ground that the patent was obtained wrongfully… or… the Appellate Board or court, instead of revoking… directs the complete specification to be amended… the Appellate Board or court may… permit the grant to the petitioner of the whole or such part of the invention which… has been wrongfully obtained…
- In plain English: An inventor, Ms. Aditi, proves in court that her ex-partner, Mr. Ben, stole her invention and got a patent for it.
- The court can now do two things:
  1. Revoke (cancel) Mr. Ben’s patent.
  2. Simultaneously permit that the patent (or the stolen part of it) be granted to Ms. Aditi, the true inventor.
(2) What it says: Where any such order is passed, the Controller shall, on request by the petitioner… grant to him— (i) …a new patent bearing the same date and number as the patent revoked; (ii) …a new patent for such part bearing the same date as the patent revoked…
- In plain English: Once Ms. Aditi has the court’s permission, she goes back to the Controller. The Controller will then grant her a new patent in her name.
- Crucially: This new patent is given the same filing date (and often the same number) as the original, stolen patent. This means Ms. Aditi gets the full 20-year term she would have had from the beginning, and her patent is “senior” to any other inventions made after her original filing date.
(2) Proviso: …the Controller may… require the petitioner to file a new and complete specification… describing and claiming that part of the invention…
- In plain English: If the original patent was a mix of Mr. Ben’s and Ms. Aditi’s ideas, the Controller can tell Ms. Aditi: “Please submit a new, clean patent application that only describes and claims the parts that were stolen from you.”
(4) What it says: No suit shall be brought for any infringement of a patent granted under this section committed before the actual date on which such patent was granted.
- In plain English: This is a limitation. Let’s say it took Ms. Aditi 3 years to win her court case. Mr. Ben’s (stolen) patent was granted in 2021. Her new patent is granted in 2024 (but back-dated to 2021).
- Ms. Aditi cannot sue a third-party company for infringement that happened in 2022 or 2023. She can only sue for infringement that happens after her new patent is officially granted in 2024.

Section 53: Term of patent

This section defines the 20-year lifespan of a patent.

(1) What it says: …the term of every patent granted… shall be twenty years from the date of filing of the application for the patent.
- In plain English: The 20-year clock on your patent’s life starts ticking from the filing date, not the grant date.
- Real-world example:
  - You file your application on: July 1, 2024.
  - Your patent is granted on: December 1, 2027.
  - Your patent will expire on: July 1, 2044 (20 years from the 2024 filing date).
(1) Explanation: …the term of patent in case of International applications filed under the Patent Cooperation Treaty designating India, shall be twenty years from the international filing date…
- In plain English: This clarifies the rule for international (PCT) applications. The 20-year term still starts from the international filing date, not the later date when the application formally enters India (the “National Phase Entry”).
- Real-world example: An American company files a PCT application on March 1, 2024. They enter India on September 1, 2026. Their 20-year term in India expires on March 1, 2044 (20 years from the international filing date).
(2) What it says: A patent shall cease to have effect… on the expiration of the period prescribed for the payment of any renewal fee, if that fee is not paid…
- In plain English: To keep your patent alive for the full 20 years, you must pay a “renewal fee” to the Patent Office every year (starting from the 3rd year). If you fail to pay this fee (and any grace period), your patent lapses (ceases to exist) and falls into the public domain.
(4) What it says: Notwithstanding anything contained in any other law… on cessation of the patent right… or on expiry of the term… the subject matter… shall not be entitled to any protection.
- In plain English: Once your patent expires (after 20 years) or lapses (for non-payment), it is public property, forever. No other law (like copyright or anything else) can be used to protect that specific invention. It is now free for any member of the public to make, use, and sell.