Patents

Patent Law

Like Copyright, Trademarks, Geographical Indications, Patent is also an additional Intellectual Property protected under the law. It is governed by The Patents Act, 1970.

What is a Patent?

The history of Patent Law in India traces back to 1911 when the Indian Patents and Design Act, 1911 was enacted[1]. Any invention which is non-obvious, novel and useful can qualify for a patent. By non-obvious, it means that it should be a significant improvement/advancement to the existing technology. By novel, it means that it shouldn’t have existed before in the market.

The mere objective of granting patents should be to encourage and promote innovation, research and development. This object was very well illustrated by Supreme Court in – Bishwanath Prasad Radhey Shyam v. Hindustan Metal industries[2]. It cited as further –

The subject of Patent Law is to encourage scientific research, new technology and industrial progress. Grant of exclusive privilege to own, use or sell the method or the product patented for a limited period, stimulates new inventions of commercial utility. The price of the grant of monopoly is the disclosure of the invention at the Patent Office, which after the expiry of the fixed period of the monopoly passes into the public domain. A patent application can be filed in India, either alone or jointly, by the true and first inventor or his assignee.

What are the granted rights?

It grants the right to the inventor to exclude others from manufacturing/producing the same thing for a limited period. It is a legal document granted by the Government of India thereby giving an inventor such exclusive rights to sell, make and use an invention for 20 years.

This uniform time of 20 years was fixed vide the Amendment Act of 2005. After the passage of such time, anyone can make use of the same invention.

The Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM) generally known as the Indian Patent Office, is an agency under the Department for Promotion of Industry and Internal Trade which administers the Indian law of Patents, Designs and Trade Marks.[3]

Payment of Renewal Fee

A patent is to be renewed by every patentee every year by paying a renewal fee which can be paid every year or in lump-sum.

Restoration of Patent

Its request can be filed within 18 months from the date of termination of the patent along with the prescribed fee. After this request, the matter is to be notified in the official journal for further processing of the given request.

Requirements for Grant of a Patent in India

  • A patent application should be made at the Indian Patent Office.
  • Any person can file a patent application. Like an Indian, Foreigner, Company or the Government.
  • Applying person should be the true and first inventor of the invention proposed.
  • Its application can be made jointly.
  • The application shall disclose the best method of performing the invention for which he is entitled to claim protection.
  • The application shall define its scope.
  • It can be made for a single invention only.
  • The invention desired to be patented should be non-obvious, novel and must be capable of industrial application.

Patent of Biological Substance/Material

If the invention includes a biological substance newly found, the same is to be deposited in the International Depository Authority (IDA) before applying in India. In such a case where such substance found is already known then it is not necessary to deposit it.

Pre-Grant opposition

The representation can be filed by any person under Section 11A of The Patents Act, 1970, within 6 months from the date of application published or before the grant of patent. The grounds on which the representations can be filed are mentioned in Section 25(1) of the said Act. There is no fee for filing representation. The representation can be filed without any request of filing for the examination.

Post-Grant Opposition

Any interested person can file this within 12 months from the date of publication of the grant of patent in the journal of the patent office.

The Patents Act, 1970

Section 2(1)(j)[4] defines ‘invention’ as a new product or process involving an inventive step capable of industrial application.

“Capable of industrial application”, concerning an invention, means that the invention is capable of being made or used in the industry[5].

The ‘inventions’ shall not come under such inventions as covered under Section 3 and Section 4 of the Act[6].

Rights Granted by Patents

If it is a product – Right to prevent others from using, making, offering for sale, selling or importing it in our country.

If it is a process – Right to prevent others from using the patented process, using the product so obtained, offering for sale, selling or importing it in our country.

The following are not classified as Inventions[7].

  • Frivolous
  • Contrary to law
  • Injurious to public health
  • Mere discovery of a scientific principle
  • Any rule or scheme
  • Inventions relating to atomic energy
  • Contrary to public order or morality
  • A mere arrangement or re-arrangement of known devices
  • A method of horticulture or agriculture
  • A mere presentation of information.
  • An idea or discovery

Infringement of a Patent

Section 48 confers the right upon the patentee to prevent third parties, who without their consent cannot indulge in the act of making, using, offering for sale, selling or importing it. Patent infringement proceedings can only be initiated after the grant of the patent.

The Act also lays down that only a civil action can be initiated in the Court.

“The views of the authors are personal

Reference

[1] https://www.mondaq.com/india/Intellectual-Property/403564/Patent-Law-In-India–Everything-You-Must-Know#

[2] https://www.vakilno1.com/bareacts/laws/the-basics-of-patent-law-in-india.html

[3] https://en.wikipedia.org/wiki/Indian_Patent_Office

[4] The Patents Act,1970.

[5] https://indiankanoon.org/doc/65643/

[6] The Patents Act,1970.

[7] Section 3 in The Patents Act,1970.

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I am Niket Khandelwal, a student of Faculty of Law, Delhi University and currently in my second semester. I am continuously looking after all the legal reforms happening in the country. I find myself working in various law firms so that I get to gain experience and then come up with my own NGO which will work for the poor and the needy people of this country. Research work and writing is what gives me peace and a sense of accomplishment at the end. Criminal and Constitutional matters intrigue me the most. Apart from all of this, I am an avid reader.