Patent Law In India – Everything You Need to Know

4 mins

Introduction

The Patent Law gives the creator an exclusive right granted by the Government to prevent others from using, producing, and selling the invention for a set amount of time. Additionally, patent law allows for enhancements to their prior invention.
The major goal of patent law is to motivate inventors to make greater contributions to their fields by giving them exclusive rights over their innovations.
Modern terminology often refers to the patent law as the right given to an inventor for his invention of any novel, practical, non-obvious procedure, machine, manufactured goods, or material composition.
The Latin word “patere,” which means “to lay open” or “to make available for public examination,” is where the word “Patent Law” first appeared.

What is a Patent?

A patent is a form of intellectual property that gives the patent holder exclusive rights to a particular invention. This means that the patent holder can exclude others from making, using, selling, or distributing the patented invention without permission for a certain period, typically 20 years from the filing date.

Purpose of a Patent

The primary purpose of a patent is to incentivize innovation by providing inventors with a temporary monopoly on their inventions. This encourages inventors to disclose their inventions to the public, which in turn promotes technological progress and economic growth.

Importance of Patents

Patents are crucial because they:

Protect inventors’ rights.
Encourage investment in research and development.
Promote the dissemination of technological knowledge.
Provide a framework for resolving disputes over intellectual property.

General Process of Obtaining a Patent

Idea Conception: The inventor comes up with a novel idea.
Patent Search: Conduct a search to ensure the idea is unique.
Patent Application: Draft and file a detailed application with the patent office.
Examination: The patent office examines the application to determine if it meets all criteria.
Grant: If approved, the patent is granted and published.

History of Patent Law in India

Patent law in India has evolved significantly over the years, reflecting the country’s economic and technological advancements. Here is a brief overview of its historical development:

Pre-Independence Era

1856: The first legislation in India relating to patents was Act VI of 1856, based on the British Patent Law of 1852. This act was enacted to encourage inventions of new and useful manufactures and to induce inventors to disclose their inventions.
1857: Act VI of 1856 was repealed because it had been enacted without the approval of the British Crown.
1859: The new legislation, Act XV of 1859, was introduced, which provided protection to inventors by granting them exclusive privileges for 14 years.

Post-Independence Era

1947: After India gained independence, there was a need to update and consolidate patent laws to reflect the new socio-economic conditions.
1970: The Patents Act, 1970, was enacted, which remains the cornerstone of Indian patent law. This act introduced product and process patents in certain fields and excluded others, such as atomic energy and defense.
1999: India joined the World Trade Organization (WTO) and committed to aligning its patent laws with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
2002: The Patents (Amendment) Act, 2002, brought significant changes to the 1970 Act to comply with TRIPS, including provisions for Exclusive Marketing Rights (EMRs) and extending patent protection to all fields of technology.

Patent Law Amendment Act 2005

2005: The Patents (Amendment) Act, 2005, was enacted, which marked a significant shift by introducing product patents for pharmaceuticals and agrochemicals. This amendment also streamlined the patent application process and introduced a provision for pre-grant opposition.

Patent Law Amendment Act 2005

The Patents (Amendment) Act, 2005, marked a significant milestone in the evolution of patent law in India. This amendment was introduced to bring Indian patent laws in line with the World Trade Organization’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Here are the key changes and their significance:

Introduction of Product Patents

Key Change: The 2005 amendment introduced product patents for pharmaceuticals, food, and chemicals, areas previously excluded.
Significance: This was a major shift from the earlier practice of granting only process patents in these sectors. It allowed for greater protection of inventions, thereby encouraging innovation and investment in research and development.

Pre-Grant Opposition

Key Change: The amendment introduced a provision for pre-grant opposition, allowing third parties to oppose a patent application before it is granted.
Significance: This provision aimed to ensure that patents are granted only for genuine innovations and to prevent the misuse of the patent system by challenging dubious claims early in the process.

Enhanced Examination Process

Key Change: The amendment improved the patent examination process, including the introduction of a request for examination system where applicants must request the examination of their patent applications.
Significance: This change aimed to expedite the patent grant process and reduce the backlog of pending patent applications, ensuring timely protection for innovations.

Exclusive Marketing Rights (EMRs)

Key Change: The amendment phased out the system of Exclusive Marketing Rights (EMRs) and replaced it with product patents.
Significance: EMRs were a temporary measure to provide some level of protection for pharmaceutical and agrochemical products before full TRIPS compliance. The introduction of product patents provided more comprehensive and lasting protection.

Compulsory Licensing

Key Change: The amendment included detailed provisions on compulsory licensing, allowing the government to grant licenses to third parties to use patented inventions without the consent of the patent holder under certain conditions.
Significance: This provision ensured that patents do not become a barrier to access essential goods, especially in public health emergencies, balancing the interests of patent holders with public welfare.

Opposition and Revocation

Key Change: The amendment streamlined the processes for post-grant opposition and revocation of patents.
Significance: These changes aimed to maintain the quality and integrity of granted patents by providing mechanisms to challenge patents that do not meet the required standards.

The 2005 amendment significantly strengthened the Indian patent system, making it more robust and aligned with international standards. This alignment not only fulfilled India’s international obligations but also created a more favorable environment for innovation and investment in the country.

Effects of Patent Amendment Act 2005

The Patents (Amendment) Act, 2005, had profound impacts on the patent system in India, transforming it in several key ways. Here are the major effects of the amendments:

Changes in Patentability Criteria

Expansion of Patentable Subject Matter: Before the amendment, product patents were not granted for pharmaceuticals and agrochemicals. The 2005 Act expanded the scope of patentable inventions to include these categories, aligning Indian law with international standards.
Higher Standards of Novelty and Inventiveness: The amendment reinforced the requirements for novelty and non-obviousness, ensuring that only truly innovative inventions could be patented. This helped prevent the grant of frivolous patents.

Protection Periods

Uniform Patent Term: The amendment standardized the patent term to 20 years for all types of inventions, measured from the filing date. This provided a predictable and uniform period of protection for all patent holders.
Extended Protection for Pharmaceutical Products: The introduction of product patents in pharmaceuticals extended protection periods, encouraging pharmaceutical companies to invest in new drug development and innovation.

Enforcement Mechanisms

Pre-Grant and Post-Grant Opposition: The 2005 Act introduced a robust opposition mechanism, allowing for both pre-grant and post-grant opposition to ensure the quality of patents. This helped prevent the grant of weak patents and provided a platform for third parties to challenge the validity of patents.
Stronger Compulsory Licensing Provisions: The Act detailed conditions under which compulsory licenses could be granted, such as in cases of public health emergencies. This provision ensured that essential medicines and technologies remained accessible, balancing public interest with patent rights.

Impact on Innovation and Investment

Increased R&D Investment: The strengthened patent protection, particularly in pharmaceuticals and agrochemicals, incentivized companies to invest more in research and development. This led to an increase in innovative activities and the development of new products.
Boost to Foreign Direct Investment (FDI): Aligning Indian patent law with international norms improved the business environment, making India a more attractive destination for foreign investors. This led to increased FDI in sectors like pharmaceuticals and biotechnology.

Legal and Regulatory Framework

Improved Patent Examination Process: The amendment introduced a more efficient patent examination process, including a request for examination system that helped reduce backlogs and accelerated the grant of patents.
Enhanced Patent Litigation Framework: The changes in opposition and revocation processes strengthened the legal framework for patent enforcement, making it easier for patent holders to defend their rights and for third parties to challenge unjust patents.

Public Health and Access to Medicines

Balancing Innovation with Access: The introduction of product patents in pharmaceuticals was balanced by provisions for compulsory licensing, ensuring that while innovators were rewarded, essential medicines remained accessible to the public at reasonable prices.
Global Reputation: The 2005 amendments enhanced India’s global reputation as a country with a robust intellectual property regime, compliant with international standards, and supportive of both innovation and public health needs.

The Patents (Amendment) Act, 2005, thus marked a significant shift in India’s patent landscape, promoting innovation and investment while ensuring public welfare through balanced regulatory measures.

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Any innovation must pass three requirements to be patentable under Patent Law

First and foremost, the innovation must be original, which implies that it cannot already be used.
Second, the invention must not be apparent, which means that it must significantly improve on the prior invention; a simple shift in technique will not grant the inventor the right to a patent.
Thirdly, innovation must be beneficial in a bona fide way, which requires that it be employed in lawful activities and benefit society as a whole.

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What is patentable under Patent Law?

The exclusions on what can be patented in India were explicitly stated in Sections 3 and 4 of the Patents Act, 1970. To secure a patent in India, several requirements must be met under the Patent Law. The requirements are as follows:

Inventive topic:

The most crucial factor is identifying whether the invention corresponds to a patentable subject matter. The Patent Law lists non-patentable subject matter in Sections 3 and 4. The invention is a topic for a patent unless it falls under one of the provisions of Sections 3 or 4 of the Patent Law.
Innovation is a crucial factor in assessing an invention’s possibility of patent protection. As stated in Section 2 (l) of the Patent Law, innovation or a new invention has not been “published in any document before the date of filing of a patent application, wherever in the nation or the globe.”
To put it plainly, the novelty criterion essentially implies that an invention should never have been made public. It must be the most recent, with no identical or comparable past works under the Patent Law.

Inventive steps or non-clarity:

Section 2(JA) of the Patent Law defines an inventive step, which is defined as “the characteristic of an invention that involves technological advancement or is of economic importance or both, as compared to existing knowledge, and invention not obvious to a person skilled in the art, states that it must also be “clear to a person having ordinary skill in the art.”
This means that innovation must not be evident to a person who has ordinary ability in the relevant field. It shouldn’t be original and evident to someone with similar expertise.

Capable of industrial application:

Industrial applicability is described as “the invention is capable of being manufactured or employed in an industry” under Section 2(ac) of the Patent Law.
In essence, this indicates that the invention cannot exist in an idealized state. It must have universal applicability, which implies that it has practical value in terms of patents.
These requirements for patenting an invention are set down by law. Publishing a competent patent is another crucial requirement for acquiring a patent.
A competent patent disclosure entails that the invention must be sufficiently disclosed in a patent draft as per Patent Law specifications for a person with the requisite expertise to implement the invention without excessive difficulty.

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Rights of Patentee under Patent Law

Exclusive Right: Patentee has the exclusive right to use, exercise, sell, and distribute the patented product in India or, if the patent is for a person, to use or exercise the technique or process under the Patent Law.
Right to give licenses: The Patentee has the authority to grant licenses, transfer rights, or make other arrangements in exchange for money.
Right to surrender: Patentees have the right to surrender their patents, but before doing so, notification of the surrender must be provided to anybody listed as having an interest in the patent in the register. Any objections must be taken into account with the help of a business lawyer.
Right to file a lawsuit for patent infringement: The Patentee has the right to file a lawsuit for patent infringement in a district court with jurisdiction to hear the case with the legal advice of a business lawyer.

Patentee’s Obligations under the Patent Law

Patents used by the Government: It should be noted that the Government may employ or even purchase a patented innovation for its exclusive use and that it may also restrict or forbid the use of the patent in certain situations.
Forced licenses: The Controller may give compulsory licenses to any applicant to work the patent if it is not worked satisfactorily to fulfil the reasonable requirements of the public at a reasonable price.
Patent revocation: A patent may be revoked if there has been no work done or if the public’s demand for the patented innovation has not been met.
Patents for inventions used for defence may be subject to confidentiality requirements, such as restrictions on or outright prohibitions on the invention’s dissemination at the Controller’s discretion.
Patents that have been restored: If a patent has expired, it may be done so as long as the Patentee’s rights are not severely restricted. The patent does not have the right to pursue infringement claims where the infringement occurred between the dates of the infringement and the announcement of the reinstatement application.

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Conclusion

The key characteristics of an invention, as defined by the Patent Law, were novelty, utility, and method of manufacturing. Utility patents, design patents, and plant patents are the three different sorts of patents. Utility patents safeguard the composition, machine, or process functionality. One must take legal advice to get the patent registered.

Frequently Asked Questions

Q1. What is Patent Law?

Ans1. Patent Law grants inventors exclusive rights to their inventions for a set period, encouraging innovation.

Q2. What are the requirements for patenting an invention in India?

Ans2. An invention must be novel, non-obvious (inventive step), and industrially applicable.

Q3. What cannot be patented in India?

Ans3. Sections 3 & 4 of the Patents Act, 1970 exclude discoveries, scientific theories, mathematical methods, and plants/animals (except microorganisms).

Q4. What is the “novelty” requirement in Patent Law?

Ans4. The invention cannot have been publicly disclosed before filing the patent application.

Q5. What does “inventive step” (non-obviousness) mean?

Ans5. The invention should not be obvious to someone with ordinary skills in the relevant field.

Q6. What is “industrial applicability” in Patent Law?

Ans6. The invention must have a practical use and be capable of being manufactured or used in an industry.

Q7. What are the rights of a patent holder (Patentee)?

Ans7. Rights include exclusive use, sale, licensing, and suing for infringement.

Q8. What are the obligations of a patent holder?

Ans8. The government may use the invention for public benefit, and compulsory licenses may be issued.

Q9. When can a patent be revoked?

Ans9. A patent can be revoked if not used or if public demand for the invention is not met.

Q10. What are the different types of patents in India?

Ans10. The three main types are utility patents (functionality), design patents (appearance), and plant patents (new varieties of plants).

Theft of Intellectual Property rights is very common in today’s time. Therefore, it is recommended to get your patent registered as soon as possible with the help of a professional legal expert.

Adv. Priyanka Sharma

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Priyanka Sharma is a legal consultant who prioritises ethical and professional conduct while striving to achieve desired outcomes. With over 6years of independent practice, she has significant expertise in handling legal cases. Her exceptional communication skills enable her to express arguments in a clear and persuasive manner, both in writing and verbally, in Hindi, English, and Telugu.

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