Patents Law in India: History, Features, and Types of Patents, Assignments of Law of Evidence

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FEATURES

OF

PATENT LAW

ASST. PROF. EISHA VASHISHTHA

INTRODUCTION

➢ The Patents Act 1970 , along with the Patents Rules 1972 , came into force on 20 th April 1972 , replacing the Indian Patents and Designs Act 1911. ➢ The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. ➢ One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals. ➢ India also became signatory of the Paris Convention and the Patent Cooperation Treaty on 7 th December 1998 and thereafter signed the Budapest Treaty on 17 th December 2001.

HISTORY

➢ Being a signatory to TRIPS, India was under a contractual obligation to amend its Patents Act to comply with its provisions. India had to meet the first set of requirements on 1 st January 1995 to give a pipeline protection till the country starts granting product patent. ➢ On 26 th March, 1999 , Patents (Amendment) Act, 1999 came into force retrospective effect from 1 st January, 1995. The main amendments are as follows:

1. Section 5 ( 2 ) was introduced which provides for filing of applications for patent in the field of drugs, medicines and Agro-chemicals. These applications were kept pending in the mailbox or black box. This mailbox was to be opened on 1 st January 2005.
2. Provision of Exclusive Marketing Rights (EMR) was brought in by way of Chapter IV A. Thus, pipeline protection was provided for pharmaceutical and Agro-chemical manufacturers whose applications for product were lying in black box.
3. Section 39 was omitted from the Act, thereby enabling the Indian residents to file the applications for in an outside India simultaneously.
4. Chapter II (A) was inserted in the Indian Patent Rules dealing with International Applications under PCT.

HISTORY

CONTD.

The second phase of amendment was brought in by the Patents (Amendment) Act, 2002 which came into force on 20 th May

2003. The main features of the amendments included:

2004. Term of patent was extended from 14 to 20 years, wherein the date of patent was the date of filing of complete specification. Also the difference in term of a drug/food patent and other patent was removed.

2005. The definition of "invention" was made in conformity with the provisions of TRIPS Agreement by introducing the concept of inventive step, thereby enlarging the scope of invention.

2006. Deferred examination system was introduced.

2007. Introduction of the provision of publication of application after 18 months from the date of filing thereby bringing India at par with the rest of the world.

2008. Microorganisms became patentable, whereas inventions relating to traditional knowledge were included in the list of "what are not inventions".

2009. The concept of unity of invention in accordance with EPC and PCT.

2010. Section 39 was reintroduced thereby prohibiting the Indian residents to apply abroad without prior permission or first filing in India.

2011. Provisions of Appellate Board were brought in by inserting section 116. All appeals to the decision of the Controller would be appealable before the Appellate Board. The Head Quarter of the Appellate Board is to be in Chennai.

2012. Section 117 provided for provision for the benefit of agrochemical and pharmaceutical industry.

IMPORTANT TERMS

NEW INVENTION

It means any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art. INVENTIVE STEP "Inventive Step" is defined under Section 2 ( 1 ) (ja) of the "Act". It means a feature of an invention that involves technical advance as compare to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art."

IMPORTANT TERMS

CONTD.

➢ The Act defines ‘capable of industrial application’ in relation to an invention as capable of being made or used in an industry. ➢ An invention is capable of industrial application if it satisfies the three conditions cumulatively a) can be made b) can be used in at least one field of activity c) can be reproduced with the same characteristics as many as necessary

PATENTABLE INVENTION

➢ A new product or process, involving an inventive step and capable of being made or used in an industry is called as patentable invention. ➢ It means the invention to be patentable should be technical in nature and should meet the following criteria.

1. Novelty: The matter disclosed in the specification is not published in India or elsewhere before the date of filing of the patent application in India.
2. Inventive Step: The invention is not obvious to a person skilled in the art in the light of the prior publication/knowledge/ document.
3. Industrially applicable: Invention should possess utility, so that it can be made or used in an industry.

INVENTIONS NOT PATENTABLE

➢ An invention which is frivolous or which claims anything obviously contrary to well established natural laws. ➢ An invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health ➢ The mere discovery of a scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature ➢ The mere discovery of a new form of a substance which does not result in the enhancement of a known efficacy of that substance or the mere discovery of a new property or new use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.

INVENTIONS NOT PATENTABLE

contd.

➢ Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals. ➢ A mathematical or business method or a computer program per se or algorithms. ➢ Literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions. ➢ A mere scheme or rule or method of performing mental act or method of playing game. ➢ A presentation of information. ➢ Topography of integrated circuits.

SALIENT FEATURES OF THE PATENTS ACT, 1970

➢ Elaborate definition of invention. ➢ No product patents for substances intended for use as food, drugs and medicines including the product of chemical processes. ➢ Codifying certain inventions as non-patentable. ➢ Furnishing of information made mandatory for foreign application. ➢ Absolute novelty criteria adopted in case of publication. ➢ Grounds for opposition to the grant of a patent expanded. ➢ Certain categories exempted of prior publication, prior communication and prior use from anticipation.

CURRENT STATUS OF PATENT LAW IN INDIA

➢ The present Indian position in respect of patent law is governed by the provisions of the Patents Act, 1970 as amended by the Patents (Amendment) Act, 2005 (hereinafter referred to as the Act) and Patents Acts Rules, 2006 (hereinafter referred to as the Rules) ➢ The Head Patent Office is located at Kolkata and its branch offices are located at Delhi, Mumbai and Chennai. Patent system in India is administered by the Controller General of Patents, Designs, Trademarks and Geographical Indications. ➢ Each office has its own territorial jurisdiction for receiving patent applications and is empowered to deal with all sections of Patent Act. ➢ The jurisdiction for filing the patent application depends upon:

1. Indian applicant(s): determined according to place of residence, place of business of the applicant or where the invention actually originated.
2. Foreign applicant(s): determined by the address for service in India.

THE END