03 February 2011

Patent and Take Notice

It seems Kunnath Pharma, manufacturer of anti impotency drug Musli Power Xtra, has invested quite a lot on advertising the drug. Musli advertisements can be seen everywhere these days: on electronic displays at metro stations, huge billboards, and hoardings in sporting events. In fact, Musli Power was the “official health licensee” at the recently concluded commonwealth games.
Though Musli advertisements might appear to be stereotypical in many ways, one thing about the advertisements is distinct. The advertisements overwhelmingly use patent notices as a means to highlight the credibility of the product. 
The patent laws allow a patent holder (or a patentee) to imprint or stamp or engrave the words: “patent”, “patented”, “patent pending”, “patent applied”, or any other similar word/ words on products for which a patent has been granted or applied for in India. Therefore, companies either engrave or imprint or stamp the patent words on packaging or marketing materials of their products, or take out a public notice in newspapers informing the public regarding the inherent rights in the product.
The objective of patent notices is two fold. Firstly, it informs the public about the rights of the patentee on the product, and acts as a legal warning to imitators. Secondly, it allows the patentee to highlight that the product is novel. The patent laws also prohibit fraudulent use of such notices to protect consumer interest. For example, the patent laws specify a penalty of upto INR 1 Lakh for any fraudulent use of these patent notices with respect to any product. The patent laws also prohibit the use of such notices for any product for which the patent has expired its term or lapsed.
The example of Musli Power in using patent notices in advertising is just a discernible one. More and more companies are seemingly adopting a ‘patent and advertise’ policy. Somany Tiles, a leader in ceramics industry, has been actively marketing its VeilCraft (VC) Shield technology, for which a patent was granted by the  Indian Patent Office (IPO) last year.  Somany’s Commercial, airing frequently on television prime time, highlights the strength of the tiles by associating the “patented” word. Few years back, Eureka Forbes did an extensive campaign regarding its patented RO device.
It seems that Indian companies have finally realized the potential of using patent notices as an effective means for capturing consumer trust in their products. And, why not? Obtaining a patent after all is not an easy proposition. It involves years of research from inventors/product developers to develop something novel, and then facing a stringent  patent examinationprocedure, which may involve facing numerous oppositions from the patent office/competitors regarding novelty and other parameters of the product.
However, the most important change in mentality of the Indian companies seems to be their openness in associating with the “P” word much more comfortably. Gone are the days, when associating patent with a product meant being party to monopolistic philosophies of the west. Gone are the inhibitions of the past, when patents were seen as an exploitative tool in the hands of foreign companies for exorbitantly increasing prices of drugs, making affordability of such drugs a bane for the consumers. The Indian companies are slowly but surely understanding the worth of patents, and using patent notices as a reliable trust building measure in consumers.
The use of patent notices on products is welcome, however, companies should be wary of misleading the public by such notices. This particular patent notice (accessed here), published in Times of India, exemplifies the point I am trying to make. The patent notice is guilty of misleading the public on two counts. Firstly, it states the patent applicant to be entitled to manufacture and sell the listed device based on the patent application. This is patently incorrect, as just on the basis of a patent application no such rights accrue. The rights only accrue on the applicant, once the patent has been granted by the patent authorities. Secondly, patents provide only exclusionary rights to the patent applicant to prevent others from manufacturing or selling a patented product, and do not provide any exclusive rights to the patentee to manufacture or sell the product. It is a well established fundamental of patent law, that even if a patent has been granted, the patentee CAN NOT exclusively manufacture or sell the device until he/she is sure of not violating third party patent rights.
Now the problem is that though the patent laws provide penal liabilities on companies fraudulently using the patent notices, there is a lacuna in patent law regarding misleading patent notices. I am not commenting on whether other remedies exist to account for such misleading notices. In patent laws there seem to be none. Therefore, the regulation of content of patent notices solely rests in the hands of the patentee, and the companies should try to use patent notices constructively rather than using them as a means for misleading the public regarding the nature of rights existing in their products.

Kshitij Malhotra
Inohelp Consulting Solutions Pvt. Ltd.

1 comment:

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