A brief history of the Patent System in India

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 (GoI) 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. Inthe 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 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 change 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 26^th March 1999, the Patents (Amendment) Act, 1999 came into force with retrospective effect from 1^st January 1995. The main amendments are as follows:

• Section 5(2) was added, which allows for the filing of patent applicationsin the areas of drugs, medicines, and agrochemicals. These applications were held in the mailbox or black box and considered pending till its opening on 1^st January 2005 after the enactment of new legislation.
• Chapter IV A included the provision of Exclusive Marketing Rights (EMR).So,pipeline protection was provided for pharmaceutical and agrochemical manufacturers whose applications for products were lying in a black box.
• Section 39 was omitted from the Act, thereby enabling Indian residents to file applications outside India simultaneously.
• In the Indian Patent Rules, Chapter II (A) dealing with International Applications under PCT was added.

The Patents (Amendment) Act, 2002, implemented the second part of the amendment, which went into effect on 20^thMay, 2003. The following were the primary aspects of the amendments:

• Patent termextended from 14 years to 20 years, considering the date of patent to the date of filing.In addition, the distinction between a drug/food patent and other patents waseliminated.
• The definition of “invention” was updated in accordance with the TRIPS Agreement by including the idea of an inventive step, so broadening the scope of the invention.

iii. Deferred examination system i.e., filing of a request for examination (RQ) was introduced.

• The compliance related to18 months of publication of the application from the date of filing bringing India to par with the rest of the world.
• Microorganisms turn out to be patentable, while inventions dealing with traditional knowledge became part of “what are not inventions”.
• The concept of the unity of invention by EPC and PCT.

vii. Section 39 was reintroduced, whichprohibits the Indian residents to file overseas without previousauthorization or foremost filing in India.

viii. Section 116 was added to incorporate Appellate Board provisions.All appeals to the Controller’s ruling would be heard by the Appellate Board.The Appellate Board’s headquarters will be in Chennai.

ix. Section 107A(a) provided for Bolar’slike provision for the benefit of the agrochemical and pharmaceutical industry.

The Patents (Amendment) Ordinance, 2004, which was later superseded by The Patent (Amendment) Act, 2005, and Patents (Amendment) Rules, 2006 with retroactive 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. Noteworthyattainments of this amendment were:

• Deletion of section 5, the opening of mailbox and grant of product patents, which. led to the beginning of the “product patent regime” in India.
• Abolition of Exclusive Marketing Rights (EMR).

Currently, the patent law in India is enforced and administered bythePatents Act, 1970 which is amended by the Patents (Amendment) Act, 2005. The amended Act 2005allows 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) isintroduced 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 establishedthree (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 consideredpatentable.