This article was written by Shrevina Bhosle, a student of Government Law College, Mumbai.
Introduction and History of Patents
Patent is a statutory right which is given for an invention for a limited period of time to the patentee by the Government, in exchange of full disclosure of their invention for excluding others, from making ,using , selling , importing the patented product or the process for producing that product without their consent [i] . The most important thing relating to a patent is the fact that the information about the product or the process must not be in public knowledge. The first recorded patent for an industrial invention was granted in 1421 in Florence to the architect and engineer Filippo Brunelleschi and the patent gave him a three-year monopoly on the manufacture of a barge with hoisting gear used to transport marble. After that the concept of Patent Protection was adopted by the English and other European Countries. United States granted their first Patent to Samuel Hopkins for a method of producing Potash. The main objective of introducing the concept of Patent was to promote and Scientific Invention and ensure that the Inventor has Monetary Benefits.
Patents in India
Patent Law in India is governed by the Patents Act 1970 and since then there have been a number of inventions the law is extremely serious about granting Patents. An invention which is frivolous in nature or contrary to the well established is rejected immediately. At times people claiming patents for frivolous inventions need to pay heavy amounts of fine. The Patent must be capable of commercial exploitation but it must not be against public order or public morality. A patent should benefit the society in some manner.
The above can be explained with the help of one of the famous patent case, Cipla Ltd. Vs Hoffmann-La Roche Ltd. & Anr., where the brawl started in January 2008, on media reports that Cipla i.e the Respondent, has an intention to launch Erlocip, a non-proprietary version of Roche’s drug, i.e the Petitoner’s drug, Tarceva based on Roche’s Indian Patent 196774. Roche approached Delhi HC seeking to injunct Cipla from marketing Erlocip. The plea for the same was dismissed by the Single Judge. Roche’s plea for Special Leave before the Supreme Court was denied too and the case then moved to trial. The trial was by the Single Judge and the judgement was in favour of Roche and the former stated that Cipla was not contravening Roche’s patent and therefore, any grant against injunction was also refused. The interesting study in this case is the judgement wherein the difference between product and substance dichotomy is extensively explained. The Bench also pointed out that the Registration Act does not envisage a deed of assignment of a patent to be compulsorily registered not being an immovable property.
In another case of CTR Manufacturing Industries Limited Vs. Sergi Transformer Explosion Prevention Technologies Pvt. Ltd. & Ors., the Plaintiff i.e CTR Manufacturing Industries Limited, had Indian Patent No. 202302 for an explosion and fire detection technology for use in electrical transformers. The matter was heard in the High Court and was decided in the favour of the Plaintiff where the Judge stated that pith and marrow of the plaintiff’s contrivance are integers working on mutual dependence to produce explosion detection. What was interesting here was that it was pointed out that at an interim stage, a Court is not required to maintain the validity of a patent, the fact that the patent is granted is not necessarily at an interim stage.
It was observed in Merck Sharp & Dohme Corporation & Anr Vs. Glenmark Pharmaceuticals Ltd., the paucity of consideration will not be sufficient to doubt a license agreement. A trademark for the same can be allocated even for a normal or small consideration i.e, even of Rupees 1 or US Dollar 1. The suit was filed by the Plaintiffs for permanent injunction in regards to salt of any form of Sitagliptin, either in combination or alone that infringes the Plaintiff’s Patent No. 209816. The Defendant had filed a written statement cum- counter claim wherein, the Defendant had prayed for the cancellation of the suit patent. In the judgement the Defendant was smothered by a decree of permanent injunction from making, selling, distributing or using, etc. and any dealings in Sitagliptin Phosphate Monohydrate with one or many more drugs, infringing the suit patent No. 209816 of the plaintiff.
Person Entitled To Apply For Patents
The following can apply for a patent:
- Any person claiming to be true and first inventor of the invention;
- By any person being the assignee of the person claiming to be true and first inventor in respect of the right to make such an application;
- By the Legal Representative of any deceased person who immediately before his death was entitled to make such an application.
Process of Getting a Patent
The Process of getting a Patent can get extremely tedious and difficult. It starts with an application which is filled with the Indian Patent office. There are 4 Patent offices in India which are located in Delhi, Mumbai, Kolkata and Chennai. A provisional specification must be filled with application. And the main specification must be filled within 12 Months filling of the Patent Application. A specification describes the invention, its operation and the best way to use it. After this the application for the Patent is published to ensure there is no objection. After the Publication of the application the Patentee must request the Patent Controller for an examination. The Patent Controller then examines the Application and then ensures the fact that the product or the process is not in Public knowledge. It is also the duty the Patent Controller to ensure that application is not infringing any other Patent. The Patent Controller can either amend the application or accept it. After acceptance the Patent is eventually granted.
- When a Patent is said to be Granted:
The case of Dr. Snehlata C. Gupte vs. Union of India & Ors. ( W.P. (C) 3516 AND 3517 OF 2007) Delhi High Court) was a significant example regarding when a patent can be said to have been granted. It stated that a patent must be granted as swiftly as possible (u/s 43) but it does not state the provisions if the patent is in contravention of the Act. Basically, the case highlights that the Controller’s Intention to Grant on file is a date of grant of the patent.
Another case that highlights when a patent is said to be granted is the case of Chemtura Corporation vs. Union of India (CS (OS) No. 930 of 2009 wherein it was emphasised that the regulatory requirements must be fulfilled and the facts must not be altered with. The case highlighted on the fact that Section 8 of the Act is obligatory and must be followed on a periodic basis.
Similarly, Tata Chemicals Limited vs. Hindustan Unilever Limited (ORDER No. 166 of 2012) IPAB on the importance of the requirement of Section 8 of the said Act. While the argument of Section 8 has been used previously in foreign countries, the question of issue in the present case was whether Section 8 could be applied to patent prosecutions before international non- governmental organizations under international treaties, the present one being IPER that is, International Preliminary Examination Report issued by the WIPO.
The Supreme Court’s judgement of Novartis AG vs. Union of India
would be commended as a landmark judgement in regards to the Indian Patenting System. Novartis had been fighting for the patent since 2006 to get the patent for Gilvec, a drug for treating chronic myeloid leukaemia. It had been pushing the patent with the argument that if the rights of the investors are not sustained then it will devastate research and development.
- Compulsory License of Patent in India:
India’s first compulsory license of patent was granted to the Natco Pharma Ltd. For producing the medicine called Nexavar which is used in the treatment of Kidney and Liver cancer. The medicine was a generic version of Bayer Corporation’s patented medicine. The latter was selling it at Rs. 2.80 lakhs for a month’s course whereas the former promised to make it available at a price of Rs. 8,800. Natco was asked to pay 6 percent of its net sales to the Bayer Corporation ( Natco Pharma Ltd. vs. Bayer Corporation )
A very interesting thing about Patents is the fact that they are restricted to a geographical location. This means that if a product or process has protection in India then it is not necessary that it would have protection in a foreign country. A very famous case which came forward was Turmeric Case. A U.S. patent on turmeric was awarded to the University of Mississippi Medical Centre in 1995, specifically for the “use of turmeric in wound healing.” This patent also granted them the exclusive right to sell and distribute turmeric. Two years later, a complaint was filed by India’s Council of Scientific and Industrial Research, which challenged the novelty of the University’s “discovery,” and the U.S. patent office investigated the validity of this patent. In India, where turmeric has been used medicinally for thousands of years, concerns grew about the economically and socially damaging impact of this legal biopiracy. In 1997, the patent was finally revoked. But for two years the patent on turmeric had stood, although the process was non-novel and had in fact been traditionally practiced in India for thousands of years, as was eventually proven by ancient Sanskrit writings that documented turmeric’s extensive and varied use throughout India’s history.
Secrecy Directions for Defence Purposes
If the controller feels that the invention is one of a class notified to him by the central government as relevant for defence purposes, or, where invention appears to him as relevant, he may give directions for prohibiting or restricting the publication of information with respect to the invention.
The Controller then gives application and directions of issue to the Central Government. It then depends on the Central Government whether they want the application to be published or not. Publishing is often considered against the defence of the Nation.
Patents have always been an extremely important part of intellectual property as they deal with scientific inventions which are made to the benefit the Society and to provide monetary benefits to the inventor. Patents have played an exceptionally important role in encouraging individuals to invent medicines for various diseases. Patents have also played an important role for companies to patent their products. Companies have benefited the most from Patent. As per September 2013 Samsung India Software Operations Private Limited has 12 Products Patented to their name followed by Goldstar Co. Ltd that has 8 Products Patented to their name while Qualcomm Incorporated has 7 to their name. These are a few companies which have the maximum number of products Patented to their name.