INTRODUCTION
Patents are legal rights granted to inventors for their creations. However, Patent is not just about owning a piece of paper but comes with responsibilities. In India, Patents are supposed to be "worked," meaning the patented invention should be used or manufactured commercially in India. If a patentee does not do so, the law provides tools like compulsory licences and even revocation of the patent. To help implement these legal responsibilities, the Indian Patents Act, 1970 ("Act"), lays out clear provisions to maintain patent records and handle licensing processes.
PROVISIONS OF THE PATENT REGISTER
Once a patent is granted, the Patent Office maintains a Register of Patents, which is the official record of all Patents in India, with details such as the patentee's name, nationality, address, the title of the invention, and dates of grant (Rule 88(1)). It also includes information about court cases, ownership transfers, licences, mortgages, and renewals. Moreover, the register is open for public inspection (Rule 95), so anyone can check the status or ownership of a patent by paying a small fee.
The Act does not grant patents just to block others from using an invention or to import products from abroad. Section 83 lays down that Patents must be worked in India to the benefit the public through access to technology and affordable products. It further states that they must not restrict trade or public health interests or abuse their rights to stop fair competition.
In case a patent holder does not work the patent in India, or if the product is too expensive, any person (even a competitor or a third party) can apply for a compulsory licence under Section 84after three years from the date the patent was granted. Section 89 outlines that the goals of compulsory licensing is to ensure patented inventions are used in India without delay, and prevent unfair harm to Indian businesses using the patent.
For a compulsory license, the grounds include public's needs not being met, not reasonably affordable, and invention is not being used in India. For this, applicant must use Form 17 and provide details about their interest in the patent, efforts to get a licence from the patentee, and how they plan to work the patent (Section 84(3); Rule 96). The Patent Office determines various factors such as, whether the applicant is capable of working the invention, how much time has passed since the patent was granted, and whether the applicant made genuine attempts to negotiate a licence (Section 84(6)). Section 90 states that while granting a compulsory licence, the Controller must set terms such as, provide reasonable royalty to the patentee, ensure non-exclusive, non-transferable rights, make the product affordable to the public, allow exports in specific public interest cases (Section 84(7)(a)(iii)). Normally, the licensee cannot import the patented article (Section 90(2)), unless directed by Central Government in public interest (Section 90(3)).
Section 91 also allows a licensee or patentee to get a licence for a related patent if it can be established that they cannot use the current Patent properly without another related patent. The Controller will allow this only if the person is ready to grant a licence in return, and the related invention has helped Indian industry. Section 92A also allows compulsory licensing for exporting patented pharmaceutical products to countries that do not have local manufacturing capacity. The importing country must allow such imports, and the application must be made in the prescribed manner. This is in line with India's commitment under the TRIPS agreement and WTO's Doha Declaration.
Importantly, in situations like national emergency, public health crises, or non-commercial public use, the requirement to first negotiate with the patentee may be waived (Section 84(6)(iv), Proviso). The Central Government can issue a notification under Section 92, allowing any person to apply for a compulsory licence. Here, the Controller is expected to skip the long procedures, quickly issue a licence, and ensure products are sold at lowest possible prices (Section 92(1)(ii)).
The process for hearing applications under Sections 84 and 85 is defined in Section 87, and includes determining whether a prima facie case exists. Upon satisfaction, the applicant must serve a copy to the patentee and publish the application in the Official Journal. The patentee can oppose the application, and both parties are given a chance to be heard. This ensures transparency and fairness.
In the matter Bayer Corporation v. Union of India, 162 (2009) DLT 371, it was noted that Bayer (Plaintiff), was granted a patent for its drug 'Sorafenib Tosylate' and in 2012, Natco Pharma was granted the first ever Compulsory License by the Drug Controller of India (Defendants) to produce a generic version of this drug. The Plaintiff was priced at INR 2,80,000 per month and Defendant promised to make this drug available for INR 8,800 only. The Appellate Board rejected Plaintiff's appeal holding that the License was granted in public interest because of its lower prices allowing people to access it. Upon a challenge, the Bombay High Court dismissed the petition upholding that public interest shall always be prioritised. It held that the objective behind the incorporation of the Patent Act is to promote invention and safeguard the creator from infringement.
Powers of Controller and Terms of Licence
Under Section 85 allows the Patent Office to revoke (cancel) the Patent if the situation doesn't improve even after granting a compulsory licence. This can be done two years after the first compulsory licence is granted, by either the Central Government or an interested person. The grounds for revocation are similar to those under Section 84. Under Section 88, the Patent Office has power to modify existing licences, cancel earlier licences, grant licences for related patents held by the same patentee if needed to work the original invention. Also, if the terms of a licence are too harsh, the licensee can ask for a revision after 12 months of working the invention.
Section 93 states thatany licence granted by the Controller is legally binding and acts like a signed deed between the patentee and the licensee. No further paperwork is required to enforce it.
SAFEGUARDS IN SPECIAL CASES
Sometimes, there may be valid reasons for not working the patent, such as a government ban, regulation, financial difficulties or lack of time. Section 86, allows the Controller to postpone grant of a compulsory licence or revocation application for up to 12 months, giving the patentee more time to work the invention. Thus, a fair opportunity and balances innovation with public interest. A patentee or successor can ask for termination of a compulsory licence under Section 94, if the reasons that led to the licence no longer exist. However, the licensee has a right to object, especially if their business will suffer.
CONCLUSION
The Indian patent system is not just about protecting inventions, but also about ensuring they benefit the public. Compulsory licensing is a tool to prevent patent misuse and promote affordable access, especially in critical sectors like healthcare. For young inventors, entrepreneurs, or lawyers, understanding this framework is essential not only for protecting innovation but also for contributing to India's social and economic development.
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