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Section 88 Indian Patents Act 1970

Section 88 of the Indian Patents Act 1970

Section 88 of the Indian Patents Act 1970 is about Powers of Controller in granting compulsory licences. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

(1) Where the Controller is satisfied on an application made under section 84 that the manufacture, use or sale of materials not protected by the patent is prejudiced by reason of conditions imposed by the patentee upon the grant of licences under the patent, or upon the purchase, hire or use of the patented article or process, he may, subject to the provisions of that section, order the grant of licences under the patent to such customers of the applicant as he thinks fit as well as to the applicant.

(2) Where an application under section 84 is made by a person being the holder of a licence under the patent, the Controller may, if he makes an order for the grant of a licence to the applicant, order the existing licence to be cancelled, or may, if he thinks fit, instead of making an order for the grant of a licence to the applicant, order the existing licence to be amended.

(3) Where two or more patents are held by the same patentee and an applicant for a compulsory licence establishes that the reasonable requirements of the public have not been satisfied with respect to some only of the said patents, then, if the Controller is satisfied that the applicant cannot efficiently or satisfactorily work the licence granted to him under those patents without infringing the other patents held by the patentee and if those patents involve important technical advancement or considerable economic significance in relation to the other patents, he may, by order, direct the grant of a licence in respect of the other patents also to enable the licensee to work the patent or patents in regard to which a licence is granted under section 84.

(4) Where the terms and conditions of a licence have been settled by the Controller, the licensee may, at any time after he has worked the invention on a commercial scale for a period of not less than twelve months, make an application to the Controller for the revision of the terms and conditions on the ground that the terms and conditions settled have proved to be more onerous than originally expected and that in consequence thereof the licensee is unable to work the invention except at a loss:

Provided that no such application shall be entertained a second time.


See also:

Section 87 Indian Patents Act 1970 (Procedure for dealing with applications under sections 84 and 85.)

Section 87 Indian Patents Act 1970

Section 87 of the Indian Patents Act 1970

Section 87 of the Indian Patents Act 1970 is about Procedure for dealing with applications under sections 84 and 85. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

(1) Where the Controller is satisfied, upon consideration of an application under section 84, or section 85, that a prima facie case has been made out for the making of an order, he shall direct the applicant to serve copies of the application upon the patentee and any other person appearing from the register to be interested in the patent in respect of which the application is made, and 1[shall publish the application in the official journal].

(2) The patentee or any other person desiring to oppose the application may within such time as may be prescribed or within such further time as the Controller may on application (made either before or after the expiration of the prescribed time) allow, give to the Controller notice of opposition.

(3) Any such notice of opposition shall contain a statement setting out the grounds on which the application is opposed.

(4) Where any such notice of opposition is duly given, the Controller shall notify the applicant, and shall give to the applicant and the opponent an opportunity to be heard before deciding the case.


See also:

Section 86 Indian Patents Act 1970 (Power of Controller to adjourn applications for compulsory licences, etc., in certain cases.)

Section 86 Indian Patents Act 1970

Section 86 of the Indian Patents Act 1970

Section 86 of the Indian Patents Act 1970 is about Power of Controller to adjourn applications for compulsory licences, etc., in certain cases. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

(1) Where an application under section 84 or section 85, as the case may be, is made on the grounds that the patented invention has not been worked in the territory of India or on the ground mentioned in clause (d) of sub-section (7) of section 84 and the Controller is satisfied that the time which has elapsed since the sealing of the patent has for any reason been insufficient to enable the invention to be worked on a commercial scale to an adequate extent or to enable the invention to be so worked to the fullest extent that is reasonably practicable, he may, by order, adjourn the further hearing of the application for such period not exceeding twelve months in the aggregate as appears to him to be sufficient for the invention to be so worked:

Provided that in any case where the patentee establishes that the reason why a patented invention could not be worked as aforesaid before the date of the application was due to any State or Central Act or any rule or regulation made thereunder or any order of the Government imposed otherwise than by way of a condition for the working of the invention in the territory of India or for the disposal of the patented articles or of the articles made by the process or by the use of the patented plant, machinery, or apparatus, then, the period of adjournment ordered under this sub-section shall be reckoned from the date on which the period during which the working of the invention was prevented by such Act, rule or regulation or order of Government as computed from the date of the application, expires.

(2) No adjournment under sub-section (1) shall be ordered unless the Controller is satisfied that the patentee has taken with promptitude adequate or reasonable steps to start the working of the invention in the territory of India on a commercial scale and to an adequate extent.


See also:

Section 85 Indian Patents Act 1970 (Revocation of patents by the Controller for non-working.)

Section 85 Indian Patents Act 1970

Section 85 of the Indian Patents Act 1970

Section 85 of the Indian Patents Act 1970 is about Revocation of patents by the Controller for non-working. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

(1) Where, in respect of a patent, a compulsory licence has been granted, the Central Government or any person interested may, after the expiration of two years from the date of the order granting the first compulsory licence, apply to the Controller for an order revoking the patent on the ground that the patented invention has not been worked in the territory of India or that reasonable requirements of the public with respect to the patented invention has not been satisfied or that the patented invention is not available to the public at a reasonably affordable price.

(2) Every application under sub-section (1) shall contain such particulars as may be prescribed, the facts upon which the application is based, and, in the case of an application other than by the Central Government, shall also set out the nature of the applicants interest.

(3) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that patented invention have not been worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price, may make an order revoking the patent.

(4) Every application under sub-section (1) shall ordinarily be decided within one year of its being presented to the Controller.


See also:

Section 84 Indian Patents Act 1970 (Compulsory licences.)

Section 84 Indian Patents Act 1970

Section 84 of the Indian Patents Act 1970

Section 84 of the Indian Patents Act 1970 is about Compulsory licences. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

(1) At any time after the expiration of three years from the date of the 1[grant] of patent, any person interested may make an application to the Controller for grant of compulsory licence on patent on any of the following grounds, namely:–

(a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

(b) that the patented invention is not available to the public at a reasonably affordable price, or

(c) that the patented invention is not worked in the territory of India.

(2) An application under this section may be made by any person notwithstanding that he is already the holder of a licence under the patent and no person shall be estopped from alleging that the reasonable requirements of the public with respect to the patented invention are not satisfied or that the patented invention is not worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price by reason of any admission made by him, whether in such a licence or otherwise or by reason of his having accepted such a licence.

(3) Every application under sub-section (1) shall contain a statement setting out the nature of the applicants interest together with such particulars as may be prescribed and the facts upon which the application is based.

(4) The Controller, if satisfied that the reasonable requirements of the public with respect to the patented invention have not been satisfied or that the patented invention is not worked in the territory of India or that the patented invention is not available to the public at a reasonably affordable price, may grant a licence upon such terms as he may deem fit.

(5) Where the Controller directs the patentee to grant a licence he may, as incidental thereto, exercise the powers set out in section 88.

(6) In considering the application filed under this section, the Controller shall take into account,–

(i) the nature of the invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention;

(ii) the ability of the applicant to work the invention to the public advantage;

(iii) the capacity of the applicant to undertake the risk in providing capital and working the invention, if the application were granted;

(iv) as to whether the applicant has made efforts to obtain a licence from the patentee on reasonable terms and conditions and such efforts have not been successful within a reasonable period as the Controller may deem fit:

Provided that this clause shall not be applicable in case of national emergency or other circumstances of extreme urgency or in case of public non-commercial use or on establishment of a ground of anti-competitive practices adopted by the patentee,
but shall not be required to take into account matters subsequent to the making of the application.

[Explanation.–For the purposes of clause (iv), “reasonable period” shall be construed as a period not ordinarily exceeding a period of six months.]

(7) For the purposes of this Chapter, the reasonable requirements of the public shall be deemed not to have been satisfied–

(a) if, by reason of the refusal of the patentee to grant a licence or licences on reasonable terms,–

(i) an existing trade or industry or the development thereof or the establishment of any new trade or industry in India or the trade or industry of any person or class of persons trading or manufacturing in India is prejudiced; or

(ii) the demand for the patented article has not been met to an adequate extent or on reasonable terms; or

(iii) a market for export of the patented article manufactured in India is not being supplied or developed; or

(iv) the establishment or development of commercial activities in India is prejudiced; or

(b) if, by reason of conditions imposed by the patentee upon the grant of licences under the patent or upon the purchase, hire or use of the patented article or process, the manufacture, use or sale of materials not protected by the patent, or the establishment or development of any trade or industry in India, is prejudiced; or

(c) if the patentee imposes a condition upon the grant of licences under the patent to provide exclusive grant back, prevention to challenges to the validity of patent or coercive package licensing, or

(d) if the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent or is not being so worked to the fullest extent that is reasonably practicable, or

(e) if the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by–

(i) the patentee or persons claiming under him; or

(ii) persons directly or indirectly purchasing from him; or

(iii) other persons against whom the patentee is not taking or has not taken proceedings for infringement.


See also:

Section 83 Indian Patents Act 1970 (General principles applicable to working of patented inventions.)

Section 83 Indian Patents Act 1970

Section 83 of the Indian Patents Act 1970

Section 83 of the Indian Patents Act 1970 is about  General principles applicable to working of patented inventions. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely:–

(a) that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;

(b) that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article;

(c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;

(d) that patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest specially in sectors of vital importance for socio-economic and technological development of India;

(e) that patents granted do not in any way prohibit Central Government in taking measures to protect public health;

(f) that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and

(g) that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.


See also:

Section 82 Indian Patents Act 1970 (Definition of “patented articles” and “patentee”.)

Section 82 Indian Patents Act 1970

Section 82 of the Indian Patents Act 1970

Section 82 of the Indian Patents Act 1970 is about Definition of “patented articles” and “patentee”. It is under CHAPTER XVI of the Act. CHAPTER XVI is titled WORKING OF PATENTS, COMPULSORY LICENCES AND REVOCATION.

In this Chapter, unless the context otherwise requires,–

(a) “patented article” includes any article made by a patented process; and

(b) “patentee” includes an exclusive licensee.]


See also:

Section 81 Indian Patents Act 18970 (Disposal by Controller of applications for extension of time.)

Section 81 Indian Patents Act 1970

Section 81 of the Indian Patents Act 1970

Section 81 of the Indian Patents Act 1970 is about Disposal by Controller of applications for extension of time. It is under CHAPTER XV of the Act. CHAPTER XV is titled POWERS OF CONTROLLER GENERALLY.

Where under the provisions of this Act or the rules made thereunder the Controller may extend the time for doing any act, nothing in this Act shall be deemed to require him to give notice to or hear the party interested in opposing the extension, nor shall any appeal lie from any order of the Controller granting such extension.


See also:

Section 80 Indian Patents Act 1970 (Exercise of discretionary powers by Controller.)

Section 80 Indian Patents Act 1970

Section 80 of the Indian Patents Act 1970

Section 80 of the Indian Patents Act 1970 is about Exercise of discretionary powers by Controller. It is under CHAPTER XV of the Act. CHAPTER XV is titled POWERS OF CONTROLLER GENERALLY.

Without prejudice to any provision contained in this Act requiring the Controller to hear any party to the proceedings thereunder or to give any such party an opportunity to be heard, the Controller shall give to any applicant for a patent, or for amendment of a specification (if within the prescribed time the applicant so requires) an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Controller by or under this Act:

[Provided that the party desiring a hearing makes the request for such hearing to the Controller at least ten days in advance of the expiry of the time-limit specified in respect of the proceeding.]


See also:

Section 79 Indian Patents Act 1970 (Evidence how to be given and powers of Controller in respect thereof.)

Section 79 Indian Patents Act 1970

Section 79 of the Indian Patents Act 1970

Section 79 of the Indian Patents Act 1970 is about Evidence how to be given and powers of Controller in respect thereof. It is under CHAPTER XV of the Act. CHAPTER XV is titled POWERS OF CONTROLLER GENERALLY.

Subject to any rules made in this behalf, in any proceeding under this Act before the Controller, evidence shall be given by affidavit in the absence of directions by the Controller to the contrary, but in any case in which the Controller thinks it right so to do, he may take oral evidence in lieu of, or in addition to, evidence by affidavit, or may allow any party to be cross-examined on the contents of his affidavit.


See also:

Section 78 Indian Patents Act 1970 (Power of Controller to correct clerical errors, etc.)