Blogs
“History is not the past but a map of the past, drawn from a particular point of view, to be useful to the modern traveller.” very well said by US historian Henry Glassie and true with respect to various Intellectual Property Rights systems in the world including India, which has a robust patent system very much in compliance with International standards and agreements.
A patent is an outcome of curiosity and is based on the ideas reduced in the practice. It is the most important form of Intellectual Property Right (IPR) for an invention, awarded territorially by the Government of India to the creator of the invention the sole right to make, use, sell, offer to sell and or import that invention for a set period. Hence, the patent is an exclusive statutory right rather negative right granted by a government to an inventor for a limited period in exchange for the complete disclosure of their invention.
A branch of Intellectual Property Law that deals with Patents is termed as Patent Law and the system related to the governance and administration of it is known as the Patent system. Patent rights are territorial in nature; therefore, they are country specific. The Indian Patent Law enforce only in Indian Jurisdiction.
A Patent System can play a pivotal role in the industrial progress of a country if it is designed to serve the needs and address the aspirations of the inventive genius of that country. In all the developed countries the Patent System is closely related to the history of the growth of that country, say, for instance, USA, Japan and Germany and recently China or South Korea. The history of the Indian Patent System is outlined below:
The Act VI of 1856 on protection of inventions is based on the British Patent Law of 1852. Certain exclusive privileges are granted to inventors of new manufacturers for a period of 14 years.
The Act modified as act XV Patent monopolies called exclusive privileges (making, selling and using inventions in India and authorising others to do so for 14 years from the date of filing specification).
The Patterns & Designs Protection Act.
The Protection of Inventions Act.
Consolidated as the Inventions & Designs Act.
The Patents Act.
The British colonizers were the ones who may be credited for the Indian IPR regime as we observe today. During British rule, the first evidence of granting an exclusive right to a person is found in the year 1825. It has been reported that one Mr Josiah Marshall Heath was granted the exclusive right to smelt iron and produce steel in the Company's domains in 1825 on the request of the Government of Madras. It was known that the right of manufacture was exclusive but not an IPR right. The idea of granting patents in India through legislation arose in the minds of the rulers in the year 1832. The first available reference to the patent system in India is contained in a letter dated the 23rd September 1835 from the Governor General-in-Council to the Advocate General of India soliciting his opinion as to the power of the Government of India for granting patents in the country. India used to be governed first by the “East India Company”, however, through the Government of India Act, of 1858, the British crown assumed the power. Thus, the patent laws and rules passed in India were the direct result of the Acts/ Rules passed in the British Parliament, enforced through its Viceroy stationed in India.
To encourage new and useful inventions as well as allow disclosure of said inventions for the benefit of the state, the first Patents Act of India was passed by the British colonial Government, widely known as the Act VI of 1856, based upon the UK Act of 1852, repealed subsequently by Act IX of 1857. Further, fresh legislation for granting “exclusive privileges” was introduced in Act XV of 1859, granting special privileges only to those inventions which were useful along with an extension of the priority period from six (6) to twelve (12) months, etc, with the exclusion of “importers” from the definition of “inventors”.
Specifically, the Act of 1859 allows the assignees to prepare and file applications in India along with considering prior public use or publication in India or the United Kingdom (UK) for decoding “Novelty” requirements. However, there came a hurdle due to the absence of any mechanisms for the protection of “Designs” as used be available in England since 1842. Therefore, the Act of 1859 was amended to include any “new” and “original” forms of design within the meaning of “new manufacture”, and metamorphosed to the “Patterns and Designs Protection Act (Act XIII)” of 1872. A further amendment was done in 1883 by Act XVI in order to introduce the provision of “Novelty” for inventions for six (6) months, which had already been disclosed in exhibitions organized in India. This provision is also available in Sections 31 and 34 of the present Indian Patents Act, 1970, wherein said a timeline has been enhanced from six (6) months to one (1) year.
Further legislation was done back in 1888 to consolidate all laws/ rules relating to inventions and designs. These efforts for synchronization finally took shape into the Act II of 1911 i.e., the Indian Patents and Designs Act, 1911, which replaced all the previous legislations regarding IPR, allowed patent terms up to fourteen (14) years, and introduced a “Controller of Patents” (still existing) for governing the administrative system related to Patents. The Patent legislation in India evolved into a full-grown Patents Act in the year 1911.
Indian Patents and Designs Act - Act II of 1911, this Act along with Indian Patents and Designs Rule, 1912 came Into force on the 1st January 1912. In September 1912, the Patent Office was moved from 2, Bankshall House Street, Kolkata to 1, Council House Street, Kolkata. Mr Henry George Graves, the erstwhile Patent secretary assumed the charge of First Controller of Patents and Designs. In the words of Mr Graves "With the able assistance of the staff, the move was effected with the minimum dislocation of business." Establishment of the Patent Office-Through this Act for the first time a separate office by the name of 'Patent Office' under the Controller of Patents and Designs was established to administer the Act. The Public Room was open from 11AM to 4PM and 11AM to 1PM on Saturdays.
Division of the Act- This Act had been divided into three parts, the first dealing with Patents, the second with Designs and the third with General Patent Matters.
Invention- As per this Act, any manner of new manufacture includes an improvement and an alleged invention.
Manufacture- This Act did not require that an invention be deemed as a new invention, it shall not be known or used in the UK also. This was a clear departure from earlier Acts.
Following this in 1920, Act II of 1911 i.e., Indian Patent and Designs Act, 1911, was amended to introduce a single priority in the nation states under the vast British colonies. By further amendment in 1930, the term of a patent was extended to sixteen (16) years, along with the introduction of provision for secrecy direction, patent of addition with the grant of a little more power to the “Controller of Patents” for rectification of registrar of patents. Still further, in 1945, a new provision for filing provisional specifications to be followed by complete specifications was introduced.
The Patent System was designed and developed by the British in India but it failed to achieve the desired goal. So, post-independence, the new Government of India felt the need for comprehensive legislation, which materialized in the formation of a committee to look into existing Indian Patent laws under Justice Bakshi Tek Chand in 1949, and further, in 1957, another committee under Hon’ble Justice N. Rajagopala Ayyangar was appointed to look into any provision for revision of the existing Patent Law. In the year 1950, the final report was submitted, and the Patent Enquiry Committee observed "...we felt that the Indian Patent System has failed in its main purpose, namely, to stimulate invention among Indians and to encourage the development and exploitation of new inventions for industrial purposes in the country, to secure the benefits thereof to the largest section of the public and there was a need to regulate the patent law in accordance with the necessity of the country." However, the impact of the Patent System in the history of India cannot be ignored altogether. It is well known that the nationalist Patent System was formed on the foundation of this system after independence and has undergone constant revisions. the enactment of Acts, Rules and amendments in response to the needs of the country from time to time.
The recommendations of this committee finally formed the “Patent Act, of 1970”, enacted finally in 1972. The Patent Act, of 1970, started allowing only “Process” patents in chemical, agrochemical, pharmaceutical and food related fields, with a special emphasis on the pharmaceutical sector to allow the availability of essential medicines at affordable prices. This clubbed with contemporary decisions of nationalization of the mining and banking sector proved havoc for the emergence of India as a great power.
However, with time, in the late 80s and early 90s, India got exhausted the funds needed even for regular purposes to run, which led to the decision of liberalization, like that China took in the late 70s. With the formation of the World Trade Organization (WTO) following the dissolution of the General Agreement on Tariffs and Trade (GATT), India went a step ahead for signing the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The Agreement was finally signed in FY 1994-95, wherein a window period for ten (10) years was provided for TRIPS compliance to the developing countries. Meanwhile, India signed both Paris Convention and Patent Cooperation Treaty (PCT) on September 7, 1998. As a TRIPS signatory, India was contractually obligated to amend its Patents Act to comply with its terms. India was required to satisfy the first set of conditions on January 1, 1995, in order to provide pipeline protection until the government began granting product patents. On 26th March 1999, the Patents (Amendment) Act, 1999 came into force with retrospective effect from 1st January 1995. The main amendments are as follows:
The Patents (Amendment) Act, 2002, implemented the second part of the amendment, which went into effect on 20th May, 2003. The following were the primary aspects of the amendments:
The Patents (Amendment) Ordinance, 2004, which was later superseded by The Patent (Amendment) Act, 2005, and Patents (Amendment) Rules, 2006 with retrospective effect from January 1, 2005, was the third and final amendment to the Patents Act, 1970. With the third amendment, India complies with the international obligations of TRIPS. Noteworthy attainments of this amendment were:
Currently, the patent law in India is enforced and administered by the Patents Act, 1970 which is amended by the Patents (Amendment) Act, 2005. The amended Act 2005 allows product patents as well in the field of chemical, agrochemical, drug, pharma, and food-related field where only process patent was available under the 1970, Act. However, to safeguard itself in the pharmaceutical domain, India coined Section 3(d), mandating an “enhancement of efficacy” requirement. In addition, the provision of Compulsory Licensing under section 84 was introduced for the non-working of essential patents. Besides, section 3(p) is introduced to safeguard traditional knowledge. Traditional Knowledge Digital Library (TKDL) is a pioneering initiative of India to protect Indian traditional medicinal knowledge and prevent its misappropriation at International Patent Offices. This library digitises all known indigenous community traditional knowledge of India and makes it non-patentable. Bio-piracy can also be prevented, thus TKDL enters into agreements with various Patent Offices, to intervene in patent applications involving Indian TK. Further, safeguarding from the exploitation of biological materials is also performed broadly by forming a National Biodiversity Authority (NBA) through the Biodiversity Act, 2002.
As a signatory of the Budapest treaty, India already established three (3) depositories for the deposition of microorganisms. Likewise, India complied with the Madrid Agreement and Madrid Protocol post-1996 and strengthened the trademark regime. Copyright laws are drafted in compliance with the Berne Convention, of 1886. Coming back to the provisions of TRIPS, these were difficult to implement for a mixed economy or an economy that still maintained some reservations against a free market. After becoming a signatory to the TRIPS Agreement in 1994 as earlier mentioned, there was a need for legislation for the subject matters barred through “Inventions not Patentable” deliberated Under Section (u/s) 3 of the Indian Patents Act, including plant varieties barred u/s 3(j), circuit design layout barred u/s 3(o), software barred u/s 3(k) by a patent or a sui generis system or by combination as per Article 27.3 (b) of TRIPS, which allowed the member countries a choice to frame legislations.
Therefore, to accommodate the domains which are not covered by a patent, an effort to protect those non-patentable yet valid and beneficial inventions are made through other related IPR channels. For example, in the USA, patents are granted for “Designs” under “Design Patent”, India created separate protection especially meant for Industrial Designs although under the same authority. “The Protection of Plant Variety and Farmers’ Right Act, 2001” was drafted and implemented from 2001 onwards to make over the non-patentability of plant varieties under “The Patent Act, 1970”. In the same year, “The Semiconductor Integrated Circuit Layout Designs Act” was implemented to compensate for the non-patentability of “circuit layout designs”. The following year, the ‘Biological Diversity Act, of 2002’ was implemented under the jurisdiction of the National Biodiversity Authority (NBA) to protect the natural indigenous species and regulate the usage of biological resources, and to channelize the inventions for constructive purposes. Software, which is patentable in the USA and elsewhere, only comes under copyright when it seeks protection in the Indian Territory. However, through the different guidelines issued by the government and issued decisions, the software is made patentable when in tandem with hardware modifying the function of the said hardware or solves a technical problem with a technical solution i.e., illustrating a technical effect created due to its application. An invention showcasing a technical effect or giving a technical contribution is not merely a computer programme per se and is hence considered patentable.
Thus, India has come a long way to enact and enforce its IPRs for the benefit of its people and to bring transparency to commercial activities. Despite following the general features of such acts in other prominent jurisdictions, India didn’t shy away when it came to forging its prowess displayed through some unique features of its Patents Act. With time, this will surely further help in creating a reliable niche for inventors and entrepreneurs. The development is a continuous process, so the same is true with the IPR system including the Patent Systems in India, which are emerging and gaining popularity day by day.
Keep yourself acquainted with the latest in IP news. Subscribe to our free newsletter to get regular updates.
Copyright © 2022 R. K. Dewan & Co.
