Human beings are always curious to explore new things, carry out research and innovate. Patents are the successful outcome of these inventions/innovations. Patents are the most significant form of Intellectual Property assets in any emerging economy.
Patents
The word Patent isa condensed form of “letters patent” and derived from the Latin root patere, meaning “to lay open”or to make available for public inspection). Patents are useful tools for applicants and inventors to create market domination and secure exclusivity on products or processes resulting in financial gains(revenue) through-the strategies of licensing or litigation.
Patents are intangible assets, i.e., they are not physical in nature. Patents are open documents, issued by the government for a limited period and provide exclusive rights to the Patent holder on a product or process. Patent types such as Utility, Design and Plant exist in the USA.
What is Patent Law
A branch of Intellectual Property Law that deals with Patents is termed as Patent Law. Patent rights are territorial in nature, which means that they are country-specific and are valid only in the registered country. Different countries have different patent laws. If the Inventors or applicants desire to obtain International Patent Protection, they need to file/register a Patent successfully in each of the required countries.
Introduction of Patent Law in India
The Indian Patent Law (Act VI of 1856) is based on the British Patent Law of 1852 and was enacted for the protection of innovation. This law enabled 14 years of exclusive privileges for new manufacturing innovators. The Act was amended in 1859 as Act XV Patent monopolies termed as exclusive privileges (making. selling and using inventions in India and authorizing others to do so for 14 years from the date of filing the application). Later amendments were as follows: in 1872 (The Patterns & Designs Protection Act), in 1883 (The Protection of Inventions Act), in 1883 (Consolidated as the Inventions & Designs Act), in 1911 (The Indian Patents & Designs Act), which enabled the protection of innovation.
History and Amendments of The Indian Patent Act
After independence, the Indian Patents and Designs Act, 1911, was updated. In 1957, the Indian government established the Justice N. Rajagopala Ayyangar Committee to investigate the feasibility of modifying the well-known Patent Law and give suggestions to the government. After two unsuccessful amendments in 1965 and 1967, the patent legislation was established in 1970, and the majority of the provisions of the 1970 Act went into force on 20.04.1972, with the publication of the Patent Rules, 1972.
In 2002 the Patents (Amendment) Act was enacted on 22.06.1999 and later enforced from 01.01.1995. The Patents (Amendment) Act 2002 was enforced from 20.05.2003.
The current Patent System in India is governed by the Patent Act 1970 (No.39 of 1970) as amended by the Patent (Amendment Act, 2005 effective from 01.01.2005 and the Patent Rules, 2003 as amended by the Patent (Amendments) Rules, 2006 effective from 05.05.2006. Patent Amendment rules were further amended later, such as in the years 2017, 2020 and 2021 respectively.
Essential criteria to be fulfilled to obtain a Patent
A patent can be issued for a product or process that involves, novelty, inventive step(s) and is capable of industrial use. It must, however, not fall into the categories of non-patentable inventions listed in sections 3 and 4 of the Patent Act 1970.
What cannot be Patented
Under the Indian Patent Act, the following inventions are not considered to be patentable inventions:
An invention, which is frivolous or claims contrary to well-established natural laws, contrary to public order or morality which causes serious prejudice to human, animal or plant life or health or the environment is not patentable.
Moreover, the mere discovery of a scientific principle or the formulation of an abstract theory or the discovery of any living thing or non-living substance occurring in nature is not patentable.
Moreover, the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant are non-patentable.
A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance is not patentable.
The mere arrangement or re-arrangement or duplication of known devices each functioning independently of one another in a known way; a method of agriculture or horticulture is not patentable.
Any process for medicinal, surgical, curative, prophylactic (diagnostic, therapeutic) or other treatment of human beings or any process for a similar treatment of animals to render them free of disease or to increase their economic value or that of their products are not patentable.
Plants and animals in whole or any part thereof other than microorganisms but including seeds, varieties and species and essentially biological processes for the production or propagation of plants and animals are not patentable.
A mathematical or business method or a computer program per se or algorithms are not patentable.
A literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever including cinematographic works and television productions is non-patentable.
A mere scheme or rule or method of performing mental act or method of playing a game; a presentation of information; or topography of integrated circuits are non-patentable.
An invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of a traditionally known component or components are non-patentable.
Inventions relating to atomic energy are non-patentable.
Benefits of Patents / Patent Law
- A patent owner has the right to block or prohibit others from economically exploiting the protected innovation.
- Patent protection implies that others cannot commercially make, use, distribute, import, or sell the patented invention without the patent owner’s permission.
- Patents provide a strong market position and a competitive edge.
- Patent rights can be licensed or assigned to others for commercial benefits.
- The patent holder can prevent others from patenting identical innovations.
- Patents attract investors for better capital gains.
- Patents are showcases of techno-commercial success.
A strong Patent Law System provides a strong foundation for the stakeholders of innovation such as inventors and innovators.
Idea, Invention and Inventor
The inventor is the person who thinks of the idea and not the person who executes the idea. It may be the case that the inventor is also the applicant but this is not always so. A corporate body cannot be named an inventor. It is important to consider and distinguish between the name of the inventor and that of the applicant at the time of filing a patent application.
The Legal Basis of Patents in India
An application for a patent for an invention may be made by any person claiming to be the true and first inventor of the invention or by his/her assignee or by the legal representative of any deceased person who immediately before his death was entitled to make such an application. There are no age requirements and a minor is also entitled to apply for a patent. An application may be made solely or jointly with any other person. Foreigners and nationals not living in India need an address for service in India for applying for a Patent in India. They may appoint a registered agent or representative in India whose address can be the address for service in India.
Patent Office & Branches
An application for a patent must be filed at the Patent Office branch within whose territorial jurisdiction the applicant resides or has his principal place of business or domicile. A foreign applicant must file at that Patent Office branch within whose jurisdiction his/her address for service is located.Indian Patent Office is administered under the superintendence of the Controller General of Patents, Designs, Trademarks and Geographical Indications. It functions under the Department forPromotion of Industry and Internal Trade, Ministry of Commerce and Industry with offices at Delhi, Mumbai, Kolkata, and Chennai.
Types of Patents / Patent Applications
There are various types of Patent applications possible in India.
An ordinary application can be filed, if no priority has been claimed. If the application is filed with a provisional specification with limited data, it is termed as a provisional application;
When the application is filed with a complete specification with a set of claims, it is termed as a complete application or a non-provisional application. Application for Patent of Addition can be filed in case of improvement or modification of the already patented or applied invention for an unexpired term of the main Patent. There is no separate fee for the renewal of the Patent of Addition, as its priority depends on the main Patent.
In case of a plurality of inventions disclosed in the main patent application, the claims of the main patent application can be divided into two or more applications and the divided patent application is termed as a divisional patent application.
Yet another type of patent application is known as a convention patent application, which is filed for the same or substantially the same invention having the same priority date as in the convention country.
The Patent Cooperation Treaty (PCT) system helps inventors and applicants file patent applications in multiple countries.As of now, 156 member states are signatories to the PCT. There is no world-wide patent, however, a National Phase Patent Application under PCT can be filed in India within 31 months.
The Process of obtaining a Patent in India
The Patent Filing procedure in India is simple, fast and not time-consuming. The legal basis of Patents in India and the flow diagram of patent filing to patent grant procedure can be accessed. (https://www.rkdewan.com/overview.php)
The patent application has to pass through several phases such as publication, examination, response to the examination, hearings and grant. Successful defense of patent application results in a granted patent for 20 years from the date of filing. If the applicant wants to keep the patent in force, they have to pay for the maintenance of the same and retain their monopoly.The Indian Patent Registration Requirements can be accessed at (https://www.rkdewan.com/requirementforms.php)
Recent changes to The Indian Patents Act
Indian Patent Law is dynamic and emerging. In 2016, 2017, 2019, and 2020, 2021 the Patents Rules were constantly revised to meet the goal of reducing procedural inconsistencies and needless impediments in the processing of applications, consequently expediting grant/registration and final disposal.
Term of Patent
In India, the patent term is 20 years from the filing date of the patent application. There is no patent term extension in India.
Rights and Obligations of The Patentee
The Patent holder has certain rights as well as obligations. The Patent holder can exploit the granted invention and stop competitors toprohibitcopying, manufacturing, selling or importing their invention for a limited time (maximum of up to 20 years). In India, there is no Patent term extension. The patent holder can license the patent and gain a competitive edge. The Patent holder has to maintain their Patent and pay the annuity fee on time, or else they may lose protection. The Patent holder can surrender the patent or sue their infringer in a court of law and ask for an appropriate remedy or damages.
Frequently Asked Questions (FAQ)–Patent Laws
The FAQ related to Indian Patent and Prosecution thereof can be accessed at (https://www.rkdewan.com/faqs.php).
Conclusion
The IP Laws, including the Patent Law in India, are sound but successful results require an India-centric plan and knowledgeable counsel who knows how to create and execute a winning strategy.
R K Dewan & Co has completed over 79 years of committed and excellent service in the field of Intellectual Property with offices in Mumbai, New Delhi, Pune, Chennai, Kolkata, Bangalore and Indore, RKD is well poised to serve its 5000+ Indian and foreign in securing, enforcing and commercialising their IP rights in India and in 125+ countries. RKD has a top-notch team of 175+ highly trained professionals equipped to deliver promptly & efficiently. ISO 9001:2015 certified RKD advises clients in all verticals of IP including patents, trademarks, copyright, design, geographical indications, plant varieties & traditional knowledge. RKD assists clients with all aspects of IP from filling, prosecution, hearings & appeals, oppositions, cancellations, commercialisation, brand valuation, litigation at all tiers of the judiciary, customs record, renewals to multi-jurisdictional portfolio management, infringement and anti-counterfeiting actions.
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