The Patent as a Right to Exclude

A patent is a right granted and protected by the state. A granted patent confers on the patentee "the exclusive right to prevent third parties" from doing a set of actions relating to the patented invention (The Patents Act, 1970, s 48). In that sense, the patent is "in the form of a negative right preventing third parties" from doing certain acts (F Hoffmann-La Roche v Cipla (2009)). To understand the meaning of term 'negative', we first need to know the that the patent right comprises of a bundle of rights including the 'acts of making, using, offering for sale, selling or importing' a patented product or a process (The Patents Act, 1970, s 48). We say a patent is a negative right as it does not grant an absolute right to make, use, offer for sale, sell or import the patented invention. In other words, it is not a positive right to practice the invention. Rather it confers upon the patentee the right to "prevent third parties who do not have his consent" (The Patents Act, 1970, s 48). Thus, the positive exercise of the patented invention by the patentee remains subject to general laws.

It is interesting to note that the language of section 48 as it was originally drafted in the Patents Act, 1970 the patent right was worded as a positive right. The language of section 48 was amended with effect from 20 May 2003 by the Patents (Amendment) Act, 2002, wherein the right was worded as a negative right. Before the said amendment to section 48, the provision as it originally stood provided that "a patent granted after the commencement of this Act, shall confer on the patentee ... the exclusive right by himself, his agents or licensees to make, use, exercise, sell or distribute such article or substance in India". The statement of objects and reasons for bringing the Patents (Amendment) Act, 2002 states that the amendment was done to bring Patents Act, 1970 in compliance with the TRIPS (Trade Related aspects of Intellectual Property Rights) Agreement. The negative language of Article 28 of the TRIPS Agreement was incorporated into section 48. On this amendment, the Hon'ble Madras High Court observed that by virtue of the amended provisions of section 48, a patent obtained after the amendment is having more significance (Bajaj Auto v TVS Motor (2008)). This observation was made in deciding whether there is a prima facie case for the grant of interim injunction. The mere change of the language from positive right to a negative right done to comply with the language of the TRIPS Agreement does not, in any material way, make the patent obtained more significant.

Patent rights extend broadly to two categories of inventions, namely, products and processes. In the case where the patented invention is a process, the right includes the right to prevent third parties from the act of using that process (The Patents Act, 1970, s 48).

Patent rights are subjective rights. They are subject to the other provisions of the Patents Act and upon the conditions specified in section 47 as well (The Patents Act, 1970, s 48). Patent rights are also territorial rights. A patent granted in India can only be enforced within the territory of India.