PATENT LAWS IN INDIA

This article is written by Krati Gautam a student of National Law University, Odisha.

Patent is a legal document acknowledged by the Government giving an inventor the selective right to make, utilize, and sell an invention for a predetermined number of years. The person to whom patent is granted in called as Patentee. The historical backdrop of Patents law starts from 1911 when the Indian Patents and Designs Act, 1911 was enacted. In India, The Indian Patents Act 1970 was implemented in 1972. The invention must fall into one of the five “statutory classes’: Processes, Machines, Manufactures, Compositions of matter, and new uses of any of the above. To qualify for patent the invention must pass three basic tests:

• First it must be unusual, meaning that the invention should not previously exist. It should be new and different.
• Second the invention should not be obvious, means it should make some improvement in existing technology.
• Third and last the invention should be useful. In legal terms, no invention would be granted patent if it is invented for any illegal or immoral use and, it must not fall into the class of innovations that are non-patentable as gave under Section 3 and 4 of the (Indian) Patents Act, 1970. A few types of discoveries are not patentable. Nobody can acquire a patent on a law of nature or a scientific principle regardless of the fact that he or she is the first to find it.

Term of each patent in India is 20 years from the date of applying of patent, regardless of whether it is documented with temporary or complete specification. Then again, if there should be an occurrence of application under PCT the term of 20 years starts from International documenting date.

Introduction of Patent Amendments Act, 2005

The Parliament passed the Patent Act, 2005 in its budget session of 2005 to amend The Patent Act, 1970 and meet its obligation under TRIPS Agreement of WTO. The Act was effective from 1st January 2005. In spite of the fact that the Act made boundless improvements to India’s patent act, the most controversial provision is the one introducing product patents in the area of pharmaceuticals. As India is a part of World Trade Organization (WTO), it had to satisfy with the requirements under the TRIPS agreement. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members.

All things considered the 1970 Act was required to be amended. The requirements were that a mailbox system should be set up and Exclusive Marketing Rights (EMR) be permitted. Under the EMR, an international company would get select rights to showcase an item in the field of pharmaceuticals and agricultural chemical products in the Indian market for a predefined period (5 years). The mailbox system is a system in which all applications for patenting of pharmaceutical and agricultural chemical products are received. These procurements were incorporated into the Patents Act through 1999, 2001 and 2002 revisions. The applications in the mail box were considered in 2005. The Act extends product patent protection in all fields of technology, i.e. drugs, food and chemicals. Earlier only process patent was allowed which limited patent rights. The Act allows for patenting of embedded software. The Act permits the patent holder to challenge the license with the intent that he can block generation of his medication. Pre-grant and post-grant resistance proviso has been given.

Patents Act 2005 provides that following items are not patentable:

• An invention the use of which would be contrary to morality or injurious to public health.
• A method of agriculture or horticulture.
• Inventions relating to atomic energy.
• The disclosure of any new property or new utilization of a known substance or the simple utilization of a known procedure, machine or mechanical assembly unless such known substance results in another item or utilizes atleast one new reactant.
• The rearrangement or duplication of known devices functioning independently of one another in a known way.
• A method or process of testing applicable during the process of manufacture rendering the machine , apparatus or other equipment more efficient, or for the improvement or restoration of the existing machine, apparatus or other equipment for the improvement or control of manufacture .

Procedure for Grant of a Patent in India:

The office of patent is headquartered at Kolkata with branches in Chennai, New Delhi and Mumbai, however the workplace of the CGPDTM (Controller General of Patents Designs and Trademarks) is in Mumbai. The workplace of the Patent Information System and The Rajiv Gandhi National Institute for Intellectual Property Management is at Nagpur. The Indian Patent Office has 75 Patent Examiners, 70 Assistant Controllers, 7 Deputy Controllers, 1 Joint Controller, and 1 Senior Joint Controller. Despite the fact that the assignments of the Controllers vary, every one of them (except Controller General) have approach power in regulating the Patents Act.

In order to attain the patent in India, first an application has to be filed for grant of patent, than a requisition for examination is required to be made for examination of the application by the Indian Patent Office. After an issuance of the First Examination Report, the Applicant is given an opportunity to meet the objections raised in the report. The Applicant needs to satisfy the requirements prescribed in the First Examination report within the 12 months of its issuance. And if the proposed requirements are not satisfied by the applicant within the prescribed period of 12 months then the application is treated to have been abandoned by the applicant.

Criticism

It has been posted in the Leading Ip Magazine that office granted patent to the products that were beyond patentable according to act. The Indian patent office have high granting rate as compared to other developed countries and indicates the failure of “well established” quality assurance which were encrypted in the procedure of granting patent. Also the monthly target for grant of application in Indian Patent office is 16; however same has been the amount of 5 in other developed countries.  The Patent office is seemed to be biased. The rules are not at all clear and in case of any discrepancies there is no fixed actions started. The patent office is also not enforcing the rules and regulation mentioned in the act. Poor framework has made a huge loss. In 2005, when India revised its Patent Act to get it consistence with World Trade Organization requirements, there were at least 56,171 pending applications. 

The Indian Patents Act, 1970 is in a similarity with the TRIPS Agreement. It, in any case, needs improvement in the form of judicial precedent as the same are deficient in patent law. It further must be broke down in the light of International development in this field. The Indian Patent law should likewise be examined in the light of both “Public International law” and the “Private International Law” as the same may create a few issues in future.