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Rathinavel (Founder)     08 December 2012

Patent effect and patent extension to other country

Dear Sir / Madam,

 

 

We are importing a product from Germany, if the German company don’t have the patent in India for the product then can we free to manufacture the same in India? Can the German company extent their patent to India later point of time? 

Please clarify us in this regards. Thanks in advance for your valuable time and effort for answering this.

Regards

Rathinavel



 3 Replies

Chirag Bhatt (Lawyer Gujarat High Court)     11 December 2012

No you can not as it will be an infringement of patent of German  product.

You are entitled  to a patent by the way of assignment or transmission as per section 69 of the patents Act 1970.

if your invention is not obvious and it involves an inventive step and it must be capable of industrial application, than you can get it registered but in your case it is not invented by you as what i understand.

for academic point of view:  new invention means any invention or techonology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification.

prabha (patent agent)     12 December 2012

Dear Rathi,

I answer your question in two parts

 

We are importing a product from Germany, if the German company don’t have the patent in India for the product then can we free to manufacture the same in India?

 

 

The answer is yes. If the company dose not have a patent in India you are free to manufacture the same in India after doing some reverse engineering on the imported product. However before doing that you have to be sure that thre is no patent since the patent in question is a PRODUCT PATENT and there was no product patent befoe 1995. Hence if the application was filed somewhere between 1992- 1995 it is likely that there is  a patent (which will expire till 2012- 2015) and you are unable to trace it because due to the publication in the gazette many a times some applications are missed even if they exist.  

 

Can the German company extent their patent to India later point of time? 

The answer is NO. 

subramanian (consultant)     16 December 2012

Patent protection is territorial in nature.It means that a patent has to be obtained for each country.If you are sure that the product is not patented or any application is pending in India then you can manufacture in India without the German companty's permission.The german company cannot apply for a patent for the same product later on as it would be rejected on the ground of lackink in novelty. prior public knowledge,publicly known etc

T.R.Subramanian

Technical memer, Intellectual Property Appellate Board (Retd)


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