THE BASICS OF PATENT LAW IN INDIA

0
7435

January 02, 2019

Similar to Trademarks, copyright, design and geographical indications, Patent is also an Intellectual Property which is protected under the Law and the rightful owner of the Patent can claim rights and authorities under the Law for a limited period. In India, the Law of Patent is primarily governed by the Patent Act of 1970.

What is Patent?

The word “Patent” refers to a monopoly right over an invention. Not all inventions are patentable nor it is essential to protect inventions solely through patent. The final product that results from an invention may be protected through other forms of intellectual property rights[1]. The statutory definition of Patent under the Patent Act as a Patent for any invention granted under the Act[2].

What is the object of Grant of Patent?

The object of grant of Patent is to encourage research and development and innovation. The Supreme Court in the case of Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries[3], enumerated the object of Patent Law as under:

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 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.

Rights in a Patent

Patent registrations confers on the rightful owner a right capable of protection under the Act i.e. the right to exclude others from using the invention for a limited period of time. The monopoly over patented right can be exercised by the owner for a period of 20 years after which it is open to exploitation by others.

Patent confers the right to manufacture, use, offer for sale, sell or import the invention for the prescribed period.

Time Period for which Patent is granted

Initially, the Act provided for a shorter term pf protection for medicine or drug substances. However, vide the Amendment Act of 2005 uniform period of 20 years was provided for all the Patents. Thus, once the prescribed period of 20 years is over, then any person can exploit the patented invention. Here it would be relevant to mention that similar to a trademark even the term of a patent begins from the date of application of patent.

What are the requirements for Grant of Patent?

  1. The application for Patent shall be made at the Indian Patent Office.
  2. Any person i.e. Indian or a Foreigner, individual, company or the Government can file a Patent Application.
  • The person applying for Patent shall be the true and first inventor of the invention proposed to be patented.
  1. The patent application can also be made jointly.
  2. The patent application shall primarily disclose the best method of performing the invention known to the applicant for which he is entitled to claim protection.
  3. The applicant shall also define the scope of invention.
  • The invention desired to be patented shall be- new, should involve an inventive step and must be capable of industrial application.
  • A patent application can be made for a single invention only.
  1. An international application made under the PCT (Patent Co-operation Treaty) designating India shall be deemed as an application made under the Patents Act with the priority date accruing from the date of the international filing date accorded under the PCT.

Invention under the Patent Act

The Act under Section 2(1)(j) defines “invention” as a new product or process involving an inventive step capable of industrial application.

The term “industrial application” refers to capable of industrial application in relation to an invention means that the invention is capable of being made or used in an industry[4]. One of the pre-requisite of invention is that it should be new i.e. the invention proposed to be patented has not been in the public domain or that it does not form part of the state of the art.

Under the Patent Act, both processes and products are entitled to qualify as inventions if they are new, involve an inventive step and are capable of industrial application.

Requirements to Qualify as Invention

  1. The Invention must be new;
  2. Invention must involve an inventive step;
  • The invention must be capable of industrial application or utility;
  1. The invention shouldn’t come under the inventions which are not patentable under Section 3 and 4 of the Patent Act, 1970;

What Inventions are not Patentable?

Non-patentable inventions are enumerated under Section 3 and 4 of the Patent Act. Such inventions are delineated below:

  • Any Invention which is frivolous or which claims anything obviously contrary to well established natural laws is not patentable.
  • Inventions which are contrary to public order or morality is not patentable.
  • An idea or discovery cannot be a subject matter of a patent application.
  • Inventions pertaining to known substances and known processes are not patentable i.e. mere discovery of a new form of a known substance which does not enhance the known efficacy of that substance is not patentable.
  • An invention obtained through a mere admixture or arrangement is not patentable.
  • A method of agriculture or horticulture cannot be subject matter of patent.
  • A process involving medical treatment of human and animals or to increase their economic value cannot be subject matter of a patent.
  • Plants and animals in whole or in part are not patentable.
  • A mathematical or business method or a computer program per se or algorithms is excluded from patent protection.
  • Matters that are subject matter of copyright protection like literary, dramatic, musical or artistic work is not patentable.
  • Any scheme or rule.
  • Presentation of information
  • Topography of integrated circuits.
  • Traditional knowledge.
  • Inventions relating to atomic energy.

Infringement of Patent

Infringement of Patent primarily refers to intrusion or violation of the rights of a Patentee against which the Patentee has statutory rights under the Act.

The factors that are essential in determining infringement of a Patent are as under:

  1. While determining infringement it has to be assessed whether the infringing activity fell within the scope of the invention. Thus, the infringement has to be determined with regard to what has been claimed as invention under the Patent Act by applying the principles or standards of construction.
  2. To determine whether the infringing activity violated any statutory rights conferred to the Patentee under the Act. In this respect reference can be made to Section 48 of the Act which enumerates the rights of the Patentee with respect to a product patent and process patent.
  3. To determine the infringer i.e. the person liable for the infringement.
  4. To determine whether the infringing act fell within the acts which do not amount to infringement under the Patents Act i.e. excluded acts of Government use, use of patented product or process for experiment or research, import of medicine or drug by Government and patents in foreign vessels and aircrafts.

 

 

 

 

 

[1] The Law of Patents With a Special Focus on Pharmaceuticals in India, Feroz Ali Khader

[2] Section 2(1)(m) of Patent Act

[3] AIR 1982 SC 1444

[4] Section 2(1)(ac)