Government use of patents: understanding of limits & evolving jurisprudence in a comparative light

Abstract

Patents form part of a statutory right of an inventor to commercially exploit the sale and licensing of his/her patent exclusively. This is of the nature of a right granted by the Government. Section 47 and 100 of the Patents Act however are powers reserved with the Central Government which permits it to use any patent of the patentee for government use. While a few cases have determined and laid down limitations to the use of such a patent by the government and circumstances under which they may not be used by the Central Government, there is still growing ideas and room for misuse and colorable exercise of power by the Government. While it is generally accepted that Section 47 is narrow in scope of power granted to government, Section 100 affords a wider range of powers calling for an analysis in order to understand how these two provisions are fundamentally different in approach and why analysis of these provisions is essential in order to arrive at a conclusion as to how powers are reserved with the Central Government over the same. Furthermore, a comparative analysis is sought to be conducted to analyze how Patent jurisprudence is evolving in India in a skewed socialist manner with Compulsory Licensing and increasing use of power by the Central Government in exercise and depriving the Patent owners a right to commercially exploit their product. The authors inter alia seek to make an analysis of the recent judgment of the Hyderabad’s court on the same. The authors seek to make a research in light of emerging jurisprudence in comparative jurisdictions and also in light of the Privacy Judgment, how the courts have reemphasized the need to protect Intellectual Property Rights by way of understanding the importance of disclosure in a regime that protects Privacy.

Keywords: Patents, Intellectual Property Rights, Government use of patent, Judgment on Privacy, Patent licensing

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