Who May Apply for a Patent

In one line

Only three kinds of person may apply for an Indian patent: the true and first inventor, someone to whom the inventor assigned the right to apply, and the legal representative of a person who died holding that right.

In the wording a student can write in an exam: by section 6 of the Patents Act, 1970, an application may be made by any person claiming to be the true and first inventor, by the assignee of such a person in respect of the right to make the application, or by the legal representative of a deceased person who immediately before death was entitled to make it, and any of them may apply alone or jointly with any other person.

Why the Act restricts it

Because the patent is a reward for inventing, not for noticing. If anybody could apply, the first person to read a foreign journal could patent what they read. Section 2(1)(y) says so in terms: the true and first inventor does not include the first importer of an invention into India, or a person to whom an invention is first communicated from outside India.

And because the wrong applicant is a defect that survives grant. Obtaining a patent wrongfully is a ground of opposition under sections 25(1)(a) and 25(2)(a), a ground of revocation under section 64(1)(b), and the trigger for the Controller's power under section 26. Chapters 570 and 580 work them through.

The provision itself

Section 6(1). Subject to the provisions contained in section 134, an application for a patent for an invention may be made by any of the following persons: (a) by any person claiming to be the true and first inventor of the invention; (b) by any person being the assignee of the person claiming to be the true and first inventor in respect of the right to make such an application; (c) by the legal representative of any deceased person who immediately before his death was entitled to make such an application.

Section 6(2). An application under sub-section (1) may be made by any of those persons either alone or jointly with any other person.

Section 2(1)(y). "True and first inventor" does not include either the first importer of an invention into India, or a person to whom an invention is first communicated from outside India.

Broken down

"Claiming to be". Section 6(1)(a) does not require the applicant to prove inventorship at the filing stage. The Controller is not a tribunal of fact about who thought of what. The claim is tested later, in opposition, in revocation, or under section 26.

The assignee, and what must be assigned. Clause (b) is not satisfied by an assignment of the invention in the abstract. It requires an assignment "in respect of the right to make such an application". Section 7(2) then requires proof of that right to be furnished with the application or within the prescribed period.