This article is written by Antara Basantani, SOA National Institute of Law, 3rdYear BALLB(H) student during an internship at LeDroit India
Keywords
- Inventions
- Intellectual property
- Legal Right
- TRIPS Agreement
- Compulsory licensing
- Patent Application
- Creativity
- Exclusive Rights
Introduction
Intelligence is the product of the brain. These works of art are considered property because of their high market value. As long as an innovation is new, non-obvious, practical, and legitimate, it can be protected by a patent, which is intellectual property. Intellectual property is an intangible asset that arises from human innovation It’s a legal privilege that shields the creator’s creation, innovation, symbol, design, etc. from unauthorized use or duplication for a predetermined amount of time, allowing them to enjoy their property peace of mind. Different forms of intellectual property exist, such as patents, trademarks, copyrights, geographical indications, and more. When the World Trade Organization proposed the TRIPS agreement in order to facilitate fair trade among member countries. By ratifying the World Trade Organization agreement, India has made the required steps and adjusted to the demands of the global community. This article will cover a number of subjects, including the sorts of patents and their legal framework.
Understanding Patent
“A Patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention. In most countries, patent rights fall under private law and the patent holder must sue someone infringing the patent in order to enforce their rights.”[1]Theword patent is deriving from Latin word “paterae,” which means “to lay open,” that is, to make available for public examination, is where the word “patent” originates. Patent infringement occurs when someone violates the patent holder’s exclusive rights or title, which are granted for a finite or specified amount of time to prevent others from creating, using, or commercializing an invention. The Patents Act, 1970 is the legislation that governs patents in India. By granting them exclusive rights over their innovations, the Patent Act’s primary goal is to incentivize people to develop novel ideas in their fields.
Types of Patents
- Utility Patents
This kind of patent covers novel and valuable devices, compositions of matter, processes, and manufacturers. This is the most sought-after type of patent. It is also available for new and improved versions of current machinery, compositions of matter, producers, and procedures. An Indian innovator can apply for a utility patent in any of the following nations: Australia, the United Arab Emirates, China, Germany, France, and several other European Union nations.
- Design Patents
Design Patent is defined as the “surface ornamentation” of an object, and it can also include the shape or configuration of an object. This type of patent can only be obtained where the design is inseparable from the object. This type of patent only protects the object ‘s appearance. If an individual wants to protect the functional or structural features of an object, he or she must also file for a utility patent.
- Plant Patents
Plants that are novel or unusual are frequently protected with plant patents. The plant must not be an Irish potato or any tuber propagated plant, nor should it be discovered in an uncultivated state, and it must be capable of asexual reproduction in order to be eligible for this kind of patent. Asexual reproduction is the process by which a plant reproduces by grafting or cutting itself, as opposed to using seeds. Similar to utility patents, plant patents are not now allowed in India, although they are in numerous European, American, and Australian jurisdictions.
Legal Framework: Patent Law in India
Key Features:
- Patentable Inventions: The Act specifies what can and cannot be patented in India. For example, inventions that are frivolous, contrary to public order or morality, or those related to atomic energy are excluded.
- Term of Patent: The protection lasts for 20 years from the filing date of the application.
- Exclusive Rights: A granted patent gives the patentee the exclusive right to prevent third parties from using, making, selling, or distributing the patented invention without their permission.
- Compulsory Licensing: The government can issue compulsory licenses under certain conditions, such as when an invention is not available to the public at a reasonable price.
- Patent (Amendment) Acts
Several amendments have been made to the original 1970 Act to bring it in line with international treaties and obligations:
a. Patent (Amendment) Act, 1999
- Introduced the concept of mailbox applications and allowed filing of patent applications for pharmaceutical and agrochemical products (although they weren’t examined until 2005, when India started granting product patents in these fields).
b. Patent (Amendment) Act, 2002
- Brought Indian patent law in compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO).
- Changed the term of patent protection to 20 years for all patents.
- Introduced pre-grant and post-grant opposition mechanisms.
c. Patent (Amendment) Act, 2005
- Enabled product patents in fields such as pharmaceuticals and agriculture, which were previously only eligible for process patents.
- Introduced compulsory licensing provisions, allowing the government to grant a license to third parties to produce the patented product under specific circumstances (public health needs, national emergencies, etc.).
- Restricted evergreening by adding Section 3(d), which prevents trivial modifications of existing drugs from being patented (important for the pharmaceutical sector).
- These rules provide detailed procedural guidelines for the implementation of the Patents Act. They lay down the procedure for filing applications, examination, and opposition, as well as timelines for different steps.
- The rules have been amended several times to make the process faster and more streamlined. For example:
- Patent (Amendment) Rules, 2016 introduced the expedited examination process.
- Patent (Amendment) Rules, 2020 made changes to timelines and fees to simplify the application process.
4. Patent Cooperation Treaty (PCT)
- India is a signatory to the Patent Cooperation Treaty (PCT), which allows inventors to file a single international application and seek protection in multiple countries.
- Under the PCT, inventors can file a PCT application with the Indian Patent Office, which acts as a receiving office.
- After filing the PCT application, the applicant has 31 months from the priority date to enter the national phase in India (and other PCT member countries).
5. International Agreements Impacting Patent Law:
- TRIPS Agreement (WTO): India’s compliance with TRIPS led to major reforms, especially in the pharmaceutical sector.
- Paris Convention: Allows applicants to claim priority from earlier foreign filings.
- Budapest Treaty: Pertains to the recognition of microorganism deposits in patent applications.
How to Protect Inventions Through Patent
- Conditions for Patentability
- Novelty: A feature of the invention must be new and not previously known in the body of knowledge as of the filing date (or priority date). We refer to this corpus of current knowledge as “prior art.”
- “Intelligent step” vs. “non-obviousness”: the invention must contain an innovative step that a person of ordinary ability in the relevant technical field could not have deduced from the previous art.
- Industrial application/utility: the invention must either provide a positive outcome or be able to be employed for an industrial or business purpose that goes beyond a purely theoretical phenomenon.
- Patentable subject matter: It is defined by each country’s laws as those topics that fall under this category. The precise definition of patentable subject matter is established in various nations by enumerating non-patentable topics. Scientific theories, artistic creations, mathematical techniques, plant or animal varieties, natural substance discoveries, commercial methods, diagnostic, therapeutic, and surgical methods for medical treatment (as opposed to medical products), and computer programs as such are among the topics that are excluded from patentability, though there are differences amongst jurisdictions.
- Adequacy of disclosure: An invention must be sufficiently full and clearly disclosed in an application for a person with ordinary skill in the relevant technical field to be able to implement it. The “best mode” for putting the invention into practice has to be stated in some nations. The description must bolster the claims.
- Patent Application
- Drafting of patent application
- Once the search is complete and through, the next step involved is to prepare an application form in form 1.
- Each application has to be accompanied by a patent specification. This has to be prepared in form 2 where one has to provide the complete or provisional specification depending upon the state of the invention (Whether its partially completed or completed). In case one files a provisional application, a time gap of 12 months is provided to finalize the invention and file the complete application.
- A patent draft will also be required to be submitted along with the application. The patent draft is considered a very important document as the same will be used by the patent office in deciding whether or not patent should be granted.
- Publication of patent application
The official patent journal will publish any patent applications submitted to the Indian Patent Office. Usually, this is completed eighteen months after the application was submitted. If someone would like it published sooner, they can request early publication using form 9. A patent that has restrictions imposed by the Indian Patent Act on its publication will not be published in a journal.
- Examining of patent application
Before a patent is eventually awarded, each application for protection will be reviewed. Form 18 must be used to submit the application for examination. The sooner a request is made, the sooner the examiner will review the application. Following filing, the application is forwarded to the patent officer, who will review it to make sure it complies with all applicable laws and regulations. The officer conducts a comprehensive search, thoroughly analysing all pertinent technologies and communicating any objections. The First Examination Report (FER) is the document that was released in this instance.
- Grant of Patent
The patent is granted once all the objections raised by the officer are resolved.
Illustrations and examples
Physiotherapist Ylva Dahlén frequently works with kids who have significant functional limitations. She created Hoppolek in order to allow these kids to move joyfully.
Samsung was granted a patent in India for an improved method of integrating camera modules into mobile phones. This patent covered advancements in image processing and sensor technology, making mobile phone cameras more compact and efficient.
Landmark Judgements
Novartis AG vs. Union of India (2013)
- Court: Supreme Court of India
- Citation: Civil Appeal Nos. 2706-2716 of 2013
- Key Issue: Patentability of the cancer drug Glivec under Section 3(d) of the Indian Patents Act
Monsanto Technology LLC vs. Nuziveedu Seeds Ltd. (2019)
- Court: Supreme Court of India
- Citation: Civil Appeal Nos. 126 & 129 of 2018
- Key Issue: Patentability of genetically modified (GM) seeds.
Conclusion
In India, patent protection is a vital legal tool that upholds the rights of inventors, fosters creativity, and supports R&D in a number of fields. A strong framework for obtaining exclusive rights over inventions is provided by the Indian Patents Act, 1970 and its revisions, which guarantee inventors the ability to profit from their creations for a predetermined amount of time (20 years). Major key take ways are Exclusive Rights, Global Integration, Balancing Public Interest, Evergreening and Patentability, Judicial Precedents and Innovation and Growth. In conclusion, India’s patent protection framework is designed to foster innovation while ensuring that inventors’ rights are safeguarded. At the same time, it addresses the needs of society by ensuring that patents do not become tools for monopolistic practices that could harm public welfare. This balance ensures a vibrant and equitable patent ecosystem for all stakeholders.
References
