Remedies of a Person with a Right to Patent

AT A GLANCE

Section 67 of the Intellectual Property Code provides that if a person referred to in Section 29 other than the applicant, is declared by final court order or decision as having the right to the patent, such person may, within three (3) months after the decision has become final.

In the world of intellectual property, “minding one’s own business” means respecting the creations and inventions of others. Yet situations may arise where a patent applicant is not the true and actual inventor of the invention being claimed.

Suppose the patent application has already been granted. Who, then, should rightfully own the patent?

The law provides a clear answer. The right to a patent ultimately belongs to the true inventor, and legal remedies exist to ensure that such right is properly recognized and protected.

In Section 28, the right to a patent belongs to the inventor, his heirs, or assigns. When two (2) or more persons have jointly made an invention, the right to patent belongs to them jointly.

The Intellectual Property Code also provides for the First to File Rule. Under Section 29, if two (2) or more persons have made the invention separately and independently of each other, the right to the patent shall belong to the person who filed an application for such invention, or where two or more applications are filed for the same invention, to the applicant who has the earliest filing date or, the earliest priority date.

But what happens if the patent applicant is not the true and actual inventor?

The law provides a remedy.

Under the Section 68 of the Intellectual Property Code, if a person, who was deprived of the patent without his consent or through fraud is declared by final court order or decision to be the true and actual inventor, the court shall order for his substitution as patentee, or at the option of the true inventor, cancel the patent, and award actual and other damages in his favor if warranted by the circumstances.

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