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Intellectual Property Rights

Concept and historical view of the Patents

The telephone of today has come a long way from its humble beginnings from the bulky version that Graham Bell had invented. It took the help of various innovators to transform from a bulky device with a two-piece to fitting in the palm of our hand. It is said Bell immediately rushed to the patent office to secure his invention from his competitor Elisha Gray who had a similar invention and thus made a mark in history

A patent is in an intellectual property right. It is a legal document granted by the government. It gives an inventor exclusive rights to make sell and use his invention for a specific number of years.

However, not all inventions are patentable. Ever wondered why Isaac Newton could not secure a patent for his laws on gravity but Thomas Alva Edison got a patent for inventing the light bulb? Read on to find out.

History of Patent

Patents have their origins in 15th century Venice where the Republic of Venice held that new inventions “had to be communicated to the Republic to obtain a right to prevent others from using them”.

In Britain, Henry VI granted John of Utynam a Flemish born artist exclusive 20-year monopolistic rights to a method of making stained glass. Under Queen Elizabeth’s reign patents were issued for knives, starch, iron paper, and soap. Patent applications were also an effortless revenue for the crown. But sometimes patents were issued for inventions that weren’t even new this led to a rise in corruptive practices. Following a massive protest from the public, King James 1 banned all monopolies in 1610.

Statute of Monopolies-

This statute was enacted in 1624 in England stating that patents could be issued only for new inventions and they should not be detrimental to the public interest. It introduced the principles of novelty, public interest, and limited time and is a precedent for trademark laws even today.

In 1796 James Watt issued a patent for his steam engine thus establishing a principle that patents could be granted for making unobvious improvements in an already existing machine.

By the 18th century under John Locke’s influence patents started to be viewed as Intellectual Property Rights.

During the mid-19th century during the Industrial Revolution, the preexisting British Patent System seemed obsolete hence the Patent Law Amendment was enacted in 1852 to make several improvements. It established a Patent office to centralize the process and an officer was appointed to investigate the novelty of each applicant’s product.

Soon countries like the USA, New Zealand, and Australia with common law heritage began to follow suit. 

In 1641 North America granted its first patent to Samuel Winslow for a new method of making salt. State-level patenting laws emerged by the late 18th century and centralized bypassing the federal law, Patent Act of 1790. They also published a report listing all the existing patents which were available in all public libraries to ensure no one applied for already patented items thus reducing the number of applications dramatically.

Paris Convention-

This was the first of many international treaties to protect intellectual property all over the world. It was signed on 20th March 1883. It guaranteed equal treatment of all its member states. It initially had only 20 members but now is followed all over the world. India joined the Paris convention in 1999.

European Patent Convention-

This convention has been operation since June 1978 and was a culmination of the patent laws of all its then member states. It is a centralized patent system for the European countries and has a head office in Munich. It provides the benefit of filing a single application for a patent that will be relevant in all its European country members that the applicant mentions.

Patent Cooperation Treaty-

This has been operating since 1978 and has 108 member states. However, the PCT just does an international search and an international preliminary examination for the applicant; it does not grant a patent. The authority to grant a patent still resides in the respective National Patent office.

TRIPS agreement –

This treaty acts as a model for most developing countries in the 20th century. The Trade-Related Aspects of Intellectual Property (TRIPS) was formed in 1994 and has more than 120 country members today. It has improved legal protection for patents worldwide. It’s most significant contribution is imposing limits on compulsory licenses.

Patent Law in India

The first patent was enacted in 1856, it gave inventors exclusive privileges fo 14 years. It was based in the UK act Several amendments were made over the years. The Patterns and Designs Protection Act,1882 and Protections of Inventions Act,1883 were replaced by the Indian Patents and Designs Act,1911, and all former acts were eliminated. Many amendments were made later on to incorporate arrangements with the UK and other countries, additional patents, governments using inventions, and increasing the term period to 16 years.

After Independence, a committee headed by retd. Judge Dr. Bakshi Tekchand was made and the act was amended again in 1950. The Ayyanger report was submitted in 1989 suggesting radical changes. The Indian Patents Act,1970 came into force in 1972. It precisely defined many terms like invention and declaration of the invention. It prohibited patenting food and agrochemicals, product patents for drugs (medicines), and put forward stringent requirements for the description of an invention. It also let innovations that were patented elsewhere be freely copied and marketed in India. The act was not detrimental to MNC’s and did not comply with the global patent system.

Since India was a member of the WTO, it had to abide by the TRIPS agreement. A concept called Exclusive Marketing Rights (EMR) was introduced as per which international pharmaceuticals could market their product for a period of five years. this was incorporated in later amendments.

The Patents amendment act in 2005 tried to incorporate more of the global goals like mandating licensing, product patents in all fields of technology like food drugs and chemicals.

The Final Amendment was in 2019 intending to bring more transparency and to include a framework for technological innovations. It seeks to make the procedure simpler and also includes provisions for easy registration of computer programs.

What is Patentable?

As per Section 2(j) of the act, ‘invention’ is defined as a new product or process involving an inventive step capable of industrial application.

For something to be patentable it has to meet the following criteria:

  • has to be novel
  • should not be an obvious progression i.e. it has to make a significant improvement if a patent is being applied for improvement.
  • should have industrial applicability and not detrimental to society
  • should not be inventions that cannot be patented as per Section 3 and 4 of the Patent Act, 1970.

Although medicine cannot be patented the process used for manufacturing can be patented.

What is not Patentable?

Inventions which are contrary to the basic laws of nature. Discoveries of nature too cannot be patented. This is why Newton could not patent his laws on gravity since he discovered them but Edison could register his manmade product since he invented it.

Agricultural, medical, plants, and animals cannot be patented. Inventions related to atomic energy, literary work that is subject to copyright is not patentable either. Discovering something by merely rearranging admixing something is also not patentable

Application for a patent in India

As per the Patent Act, 1970 the patentee has to be either the inventor himself or an assignee or a legal representative. Patents are granted on a first-come-first-serve basis i.e. whoever applies first not who invented it first. Foreign nationals can also apply for patents in India.

One can apply along with the prescribed form and fee in the domicile territory of the patentee.

The application should have the provisional (brief) and the complete specification. The latter should also include their claim and should be filed within 12 months of application.

After examining the application, the Patent Office will give a few suggestions. If the Controller of the Patents is satisfied then he will accept and the complete specification will be published in the official gazette in case anyone wants to object until which it will be sealed. After 3 months if no one opposes then the patent will be granted with respect to the product being patented. A patent can also be renewed and in case of any developments, a patent called a patent of addition may be applied which will be added to the main patent.

Conclusion

As iterated in the Supreme Court case, Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries patents are issued to encourage innovation and scientific research.

An inventor’s monopoly over his design will be protected for a period of 20 years after which it will enter the public domain.

Section 48 of the act elaborates on the statutory rights granted to the patentee. Although actions such as government use, using a patented product for experiments, etc. are exceptions under the act.

Patents are very important in this contemporary world where everyday something new is being invented every day. India, however, is very lenient for regulating patents dispiriting inventors, and also the application procedure is long and outdated. Significant changes have been made especially in the 90s in order to comply with the world’s standards but more improvement is needed.

Frequently Asked Questions

Are our patents and trademarks similar?

No, although both fall under intellectual property rights a patent is granted strictly for inventions.

Is India a part of the Paris Convention?

Yes, India is a member of the Paris Convention.

For how long will your invention be protected if your patent is granted?

20 years

Are there any jurisdictional limits while applying for a patent?

Yes, the application has to be filed at the patentee’s domicile territory.

Edited by Shikhar Shrivastava

Approved & Published – Sakshi Raje

By Sneha Kolluru

Hi, I'm Sneha Kolluru, A passion for politics, reading and endless arguing with people for the most frivolous things possible have led me to pursue law at Pune University. Combine that with a confusing combination of hyper energy and a dangerous obsession with tv series characters and you've most probably met my clone.