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SITUS OF PATENT
An order of a court made without competent jurisdiction is liable to be set aside. The
proper identification of the territorial jurisdiction of the forum recourse to which is to be
sought is critical. The location of the property which is the subject matter of proceedings
helps determining the appropriate forum and determining any right or relief in relation to that
property.
Situs
Lex situs or law of location where the property is situated is part of lex fori or law of
forum and determines the rules applicable to the property. Situs of property plays the twin
roles of identifying the nature of property and determining the forum of legal recourse. A
piece of land located at a particular place is said to be immovable as the location cannot be
changed physically. Therefore, situs or location helps in identifying the nature of the
property. But at times, we may see that the nature of the property may determine the situs and
consequently the appropriate forum. A car, for example, is a movable property which can be
moved to different places, the situs of which is where it is present at the moment in question.
The determination of situs may not be as straightforward as it may first appear to be; it can
rather be difficult at times, as is evident when the situs of an intangible property, say a patent,
is to be determined.
Intellectual Property: Nature
All intellectual properties have a common factor in that they protect intangibles, i.e.
an idea, an invention, information and so forth, embodied in tangible material. A patent is an
exclusive right to the use and enjoyment of an invention by the patentee to the exclusion of
others; a reward for the effort and skill invested by the inventor into the invention. It is an
intangible movable asset. Patent right is a form of incorporeal possession; it is an interest or
advantage unconnected with the use of material objects.1 The Patents Act regards patents as
movable property and provides that the rules of law applicable to the ownership and
devolution of movable property shall apply in relation to patents.2
The intangible nature of patents allows the property to be enjoyed by multiple users
(licensors) situated at, may be, different places at the same time. This simultaneous use at
different places may not be possible for immovable property like land which has its limits. As
a patent can be used and exploited anywhere within the territory,3 for the purpose of legal
certainty, it would be advisable to settle the situs of patents.


Anandh. K, V B.S.L., LL.B., ILS Law College, Pune. I thank Shri. Feroz Ali Khader for his views on this
article.
1
Salmond on Jurisprudence, 12th Ed. (1966) at pp. 290-91.
2
S. 50(5), Patents Act, 1970.
3
Patents are intangible and movable in nature and the rights are in rem, i.e. they are available against the whole
world. But the peculiarity is that a patent is enforceable only within the territory of the country granting it. See
also Feroz Ali Khader, The Law of Patents – With a Special Focus on Pharmaceuticals in India, 2007,
LexisNexis.
Creation of Right
Patent or the exclusive right or a monopoly created by law in dealing with the subject
matter of patent comes into existence only on registering the property with the Patent Office,
and patents in this sense could be compared with shares of an incorporated company. The
right to participate in the management of a company arises only on the entry of the name of
the shareholder in the registry kept for that purpose. The right or title to a patent is dependent
on registration. Where title is dependent on registration, the property is located at the place
where the register is kept.4
Transfer, Assignment, etc
The transfer, assignment, etc of shares before the introduction of immobilised
securities (dealing through depositories), while physical transfer was still in force,5 came into
effect only on notifying with the Company concerned and appropriate changes made in the
register kept to record the details of the shareholders. Shares transferable only through entry
in the register have been deemed to be situated where the register is kept.6 In case of transfer,
assignment, etc of patents it is necessary that they are entered in the registry. 7 If not
registered, generally, no document evidencing the transaction is admissible in evidence.8
Although, both shares (traditionally) and patents are evidenced by an instrument issued by the
appropriate authority, it is the entry in the register alone that confers the rights. It is submitted
that patents being transferable only on registration should be deemed to be situated where the
register is kept.
The Estate Duty Act
The Estate Duty Act, 1953 and the rules made thereunder, although the Act and the
Rules no longer in force, are helpful in understanding the various aspects and dimensions of
law. The rules contained provisions for determination of the location of property where estate
duty was payable. The location of patents, trademark and designs were situated where they
were registered.9
Conclusion
It is submitted that the rights under a patent availing a patentee only on registration
and the transfer, assignment, etc of patents becoming valid only on registration it should be
deemed that situs of patent is where it has been registered (or where the register is kept),
namely the Patent Office.

4
See Halsbury’s Laws of India, Vol 10, para 75.108.
5
The manners in which shares have been dealt with in the market have been subjected to a lot of changes over
the years. Traditionally shareholders were issued a certificate as proof of title. Shares were later converted into
immobilised securities, that is, the name of the shareholder are logged with Depositories and transfers happen
through electronic account transfers alone without any exchange of physical material. The DMAT account
entries prove the title. For detailed account on the situs of shares, see Cheshire and North, Private International
Law, 13th Ed., Indian Reprint, LexisNexis.
6
See Cheshire and North, Private International Law, 13th Ed., Indian Reprint, LexisNexis.
7
S. 65 of the Patents Act, 1970.
8
S. 65(5) of the Patents Act, 1970.
9
Rule 8 of the Rules of Estate Duty. See also Atul M. Setalvad, Conflict of Laws, LexisNexis at pp 415-17.