Rights Conferred by a Patent

1The Patents Act grants certain rights to the patentee which are enforceable within the territory of India. As the subject matter of an invention can be a process and a product, s 48 of the Patents Act confers distinct exclusive rights to the patentee, subject to certain conditions stipulated under the Act. The grant of a patent for a product confers an exclusive right on the patentee to prevent third parties from making, using, offering for sale, selling or importing that product. With regard to process patents, the exclusivity is limited to preventing others from the act of using that process, and from the act of using, offering for sale, selling or importing the product obtained directly by the process. (Ibid, s 48.) The grant of a process patent does not confer exclusivity with regard to manufacture. A third party will be entitled to manufacture the said product employing a non-infringing method or process.

3In Ferring BV v Precise Bio Pharma Pvt Ltd (2022) the Delhi High Court held that “Plain reading of Section 48 of the Act leaves no doubt that the exclusive right of a patentee to prevent third parties from manufacturing, selling etc. the products or using the process, as the case may be, being the subject matter of the patent, only arises once the patent is granted” (para 11).