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Requirement of marking a Product as Patented or Patent Pending

A patent is one of the Intellectual Properties of a person or business that provides protection to their invention and exclusive rights to make, use and sell their invention for a specified period of time. The inventor has to file an application to obtain a patent in the prescribed form and pay the requisite fee.
Written by:
Shivi Gupta
Published on
24-Jul-18

A patent is one of the Intellectual Properties of a person or business that provides protection to their invention and exclusive rights to make, use and sell their invention for a specified period of time. The inventor has to file an application to obtain a patent in the prescribed form and pay the requisite fee.  In India there are four major offices namely in Delhi, Mumbai, Chennai and Kolkata and depending on the address of applicant i.e. where he resides, has his domicile or has a place of business or the place from where the invention actually originated, a patent application can be filed. In case of foreign applicants, who don’t have domicile or place of business in India, the place of business or address for service in India of the patent agent appointed by them is the determining factor for appropriate office. 

A patented product or device must be marked as patented by the inventor to receive any compensation from infringement of the patent. According to the Indian Patents Act 1970, the holder of the patent may give notice to the public that the specific article is patented, either by using the word ‘patented’ or the abbreviation ‘pat’, together with the patent number or using a label with the mark. If the patent application is pending and has not been rejected, withdrawn or abandoned, the inventor can use words such as ‘patent pending’ or ‘patent applied for’. There is no legal obligation to make the product as patent pending but, many jurisdictions have realised the importance of marking a product sold in the market as patent pending to add extra advantage and protection against any sort of infringement.  Broadly, there are two types of patent marking: Physical marking- It is the physical printing of patent application number or patent number along with the ‘patent applied for’ or ‘patent’ on the product.

Virtual marking- This type of marking involves displaying the information on websites. It allows the patent owners to mark their product with a single ‘virtual patent marking’ comprised of the word ‘patent’ (or pat) together with a URL address accessible to the public that associates the patented article with the patent number.

 

Every product that is released to the public must be marked and when the product cannot be marked attributing to its characteristics, then the packaging that contains the product must be marked. However, the use of such marking when no patent has been actually applied for is an offence and if any person falsely represents that any article sold by him is patented in India or a patent application has been filed for it in India, he will be punishable with fine up to Rs. 1 lakh  under Section 120. Any act which is prohibited with respect to the patented invention without the inventor’s permission constitutes an infringement of the patent. A patent holder can file a suit for infringement in a District Court or High Court. According to the Indian Limitation Act, the period of limitation for filing the suit for infringement of a patent is three years from the date of such infringement. The limitation period for the suit begins from the date of infringement and not from the date on which the patent is granted.  Patent marking can be a good marketing tool for the business and also ensure authenticity and genuineness of the product. It also protects the patent owner in case of infringement and encourages more inventions.  Want to get your product patented? Talk to the best IPR lawyers at MyAdvo! Email us at info@myadvo.in or call now at 9811782573.