A Critique of the Indian Patent Assignments Regime:Pre-Invention Assignments and Employee’s Inventions

Employer-Employee relations have become a key component of technological development. The Employer, who is more often than not an institution, provides its skilled employees with the financial and technical resources which enable them to create inventions. However, in India, the employer faces difficulty in obtaining the right to file for a patent of such an invention due to two reasons. Firstly, a contract assigning in advance the interests of an employee to an employer is not termed as an “actual assignment” and the same is considered as an “Agreement to Assign”. As the beneficial interest of the assignor does not immediately pass, there exists a need to execute an “Actual Assignment” when the invention comes into existence. Secondly, unlike Section 17 of the Copyright Act 1957, the Patents Act 1970 does not provide for a right to apply for a patent to employers for an employee’s invention which is created in the course of his employment. This research paper argues for the remedy of either of the above two mentioned defects in the Patent Act, 1970. Furthermore, the research paper analyses Darius Rutton Kavasmaneck v Gharda Chemicals Limited and Board of Trustees of the Leland Stanford Junior University v Roche Molecular Systems, Inc. which displays the unfavourable consequences of leaving the above mentioned defects in any Patent regime.