Basics of Patent Law

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Introduction

A patent is the protector of the creations of the mind which are of scientific nature. It is an exclusive right given to the inventor by the Government for an invention. This right allows an inventor to exclude others to make, sell, use, or distribute an invention. The primary motive behind the introduction of patent law is to encourage inventors to add more value to their field. The enforcement of a patent ensures the protection of the inventor’s intellectual property rights. Patents prevent theft, ensure exclusivity, help in commercialization, and add money value to the invention. 

History of Patent Laws in India

In India, the first step of the patent law or first piece of law related to patent was Act VI of 1856 on protection of inventions based on the 1852 British patent law. In 1859, fresh legislation was enacted to grant ‘exclusive privileges’ as Act XV of 1859. Various specific modifications were imposed as well as this Act excluded importer from the definition of inventor. Further, the Act was amended in 1872 (The Patents & Designs Protection Act), 1883 (The Protection of Inventions Act), and 1888 (Consolidates as the Inventions and Designs Act). In 1911, all previous acts were repealed with the enactment of the Indian Patent and Design Act of 1911. Further this Act was replaced by the Patents Act 1970, along with the Patent Rules 1972. The Patents Act, 1970 was amended by the Patents (Amendment) Act, 2005 which introduces the grant of compulsory licenses and extended product patents in various technological areas such as medicine, microorganisms, chemicals, and food.

Patentability of an Invention

In India, there are various things that can be patented followed by certain which are required to be fulfilled for obtaining a patent. Sections 3 and 4 of the Indian Patent Act, 1970, illustrate a list of non-patentable subject matter. A patent subject matter is the most important consideration that ensures whether the invention is patentable or not. Innovativeness (novelty), inventiveness, and capacity for industrialization application are the key factors that decide whether the subject matter is patentable. 

• Innovation: It determines that innovation or novelty or new invention must not be published in the public domain and must be the newest with no similar prior work. Under Section 2(l) of the Patent Act, a new invention or innovation is defined as “any invention or technology which has not been anticipated by publication in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification, i.e., the subject matter has not fallen in public domain or that it does not form part of the state of the art.”
• Inventive step: The invention should be obvious for the skilled person in that particular field. Under Section 2(ja) of the Patent Act, inventive step means “a feature of an invention that involves technical advance as compared to the existing knowledge or having economic significance or both and that makes the invention not obvious to a person skilled in the art.”
• Capable of industrialization application: The invention must have practical utility and should be capable of being applied in the industry. According to Section 2 (ac) of the Patent Act, industrial capability is determined as “the invention is capable of being made or used in an industry.” 

Despite this, there are some inventions that are not patentable. In India, before filing an application for a grant of patent, there is a need to determine “What is not patentable in India?” In the Indian Patent Act, 1970, Sections 3 and 4 deal with inventions that could not be patentable as they do not fall under the scope of the Act. An invention that is obvious, frivolous, contrary to law, injurious to public health, and a mere discovery of scientific principle (rule of nature) cannot be patented. Also, the inventions that lead to a mere discovery of any new form of a known substance, a mere discovery of new property in a known substance, a mere arrangement or re-arrangement resulting in aggregation of the compounds, and duplication of known devices are not patentable. Along with this, inventions related to a method of horticulture or agriculture, any process for surgical, medical, diagnostic or other treatment of human beings or animals also cannot be patentable. The inventions related to atomic energy are also not patentable in India. 

Rights of patentee

• Right to Surrender: After seeking permission from the Controller, the patentee has the right to surrender the patent which is further advertised by the Controller according to the procedure mentioned in the Indian Patent Act. The interested parties in getting the patent ownership can approach the Controller directly. Further, the party’s claim is examined by the Controller and ownership is transferred if the claim is acceptable. This transfer of patent ownership happens only if the owner willingly wants to surrender the patent. Before accepting the surrender offer, a notice of surrender is delivered to the interested party, and their objections, if any, are considered. 
• Right to Exploit patent: In India, the patentee has the right to use, manufacture, sell, exercise, or distribute the patented substance or product. If the invention is a process then the patent holder has the right to either share or reserve the right to share the procedure with any other person. India’s patent law allows the patentee to seek market advantages from the invention.
• Right to Grant License: The patentee has the right to assign or grant the license of the patented product either completely or partially to others. If there are co-owners of the patented product then the permission of all the co-owners is necessary for granting the license to a third party. For it to be legitimate and valid, the license or assignment must be registered with and duly authorized by the Controller of Patents. 
• Right to sue: If the rights of the patentee are infringed or violated then he/she can approach either the District Court or High Court for the redressal, arising out of the violation of rights. If an individual is found guilty of infringement or violation then the Courts can either award the plaintiff damages or permanent injunction or both. 
• Right to apply for patent of addition: The modifications in the existing invention can be done under this right which is defined in detail under Sections 54 to 56 of the Indian Patent Act. Once the notification of acceptance comes out, the patent owner is granted the right to the modified invention. The owner is granted all the rights as provided to the previous patent once the notification is presented.  

Authorities concerning patent

India’s patent system is administered by the Controller of Patents who is considered to be the primary authority or principal officer responsible to oversee the patent system. The body responsible for the Indian Patent Act is the Controller General of Patents, Designs, and Trade Marks or CGPDTM. It offers advice to the government on related matters and is based in Mumbai. The Controller General is the overall supervisor of the four Patent Offices in Delhi, Mumbai, Chennai, and Kolkata. The patent has its head office in Kolkata (Calcutta) and branches in Delhi, Chennai, and Mumbai. Moreover, the Office of the Patent Information System and the National Institute for Intellectual Property Management are hosted by Nagpur.

Procedure of patent

1. Collecting and writing all information about invention (idea or concept) such as the field of invention, its benefits, how it works, etc.
2. To better explain the invention, idea, or concept, drawings, diagrams and sketches should be designed to explain the work visually.
3. To check the patentability of the invention, according to the Indian Patent Act, not all inventions can be patentable. 
4. The next step is to ensure that the invention meets all patent criteria including novelty, inventibility, and industrial application.
5. File a patent application either physically at the patent registry or electronically. Form 1 or Form 28, Form 2, Form 3, Form 5, and Form 26 should be filed together on the portal along with payment of the fee for patent registration. After filing a provisional application, within 12 months complete specification has to be filed. There are six kinds of applications, ordinary application, PCT National phase application, Convention application, Patent of addition application, PCT International application, and Divisional application. 
6. Publication of the patent application is the next step. After filing the complete specification along with the patent application, the application is published 18 months after the first filing. It is published in an official journal and is accessible to the public. 
7. After receiving a request for examination, the Controller gives the patent application to a patent examiner who on the basis of eligibility criteria such as newness, inventory steps, patent subject, by enabling, lack of clarity, and industrial application examines the patent.
8. Further, objections, if any, are raised then the inventor has to file a response in context with the raised objection as well as comply with any requirements within six months. If the inventor fails to comply with the requirements then the application is considered abandoned. 
9. The Controller along with the patent applicant or inventor ensures whether all the objections are resolved or not. This gives clearance whether the patent application is ready to be granted or not.
10. The application for a patent will be placed for a grant when all requirements are met and the grant of a patent is published in the Patent Journal periodically.

Opposing a patent

The public can raise opposition against the grant of a patent by following the specified mechanism mentioned under Sections 25(1) and 25(2) of the Indian Patent Act. The patent cannot be opposed on any other ground mentioned in the Act other than Section 25 of the Act. There are two types of opposition proceedings:

Pre-grant opposition

Challenging a pending patent application prior to its grant.

In Indian Patent Act, 1970, Section 25(1) along with Rule 55 of Patents Rule, 2003 formulates the law related to pre-grant opposition. As per Section 25(1) of the Act, “Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the (various) ground-” The grounds for pre-grant opposition include wrongful obtainment, prior claim, prior publication, obviousness, insufficient description, false disclosure, prior knowledge or use, biological material, non-patentable subject matter, time limit, traditional knowledge, and non-disclosure

Post-grant opposition

Challenging the validity of a patent that has been granted.

In Indian Patent Act, 1970, Section 25(2) formulates the law related to post-grant opposition which states that “At any time after the grant of patent but before the expiry of a period of one year from the date of publication of grant of a patent, any person interested may give notice of opposition to the Controller in the prescribed manner…” This type of opposition can only be filed by an interested party or person interested. The definition of ‘person interested’ is mentioned clearly in Section 2(1)(t) of the Indian Patent Act, “a person engaged in, or in promoting, research in the same fields as that to which the invention relates.” The grounds for this opposition are similar to the pre-grant opposition as mentioned earlier in this article.

Before 2005, there was no post-grant opposition system and only the pre-grant opposition system prevailed. However, a significant transformation was made in the Indian Patent System on January 01, 2005, in pursuance of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS). It introduced a post-grant opposition system in Section 25 of the Act.

Duration of patent

In India, the term of every patent is calculated from the date of filing the patent application and is of 20 years. This term is irrespective of the fact whether the patent is filed with the complete or provisional specification. In case, the application is filed under the PCT (Patent Cooperation Treaty) then the term of 20 years initiates from the international filing date. 

Doctrines 

• Doctrine of Equivalents: The claims of a patent will be infringed by an invention under the Doctrine of Equivalents if the invention or product “performs substantially the same function in substantially the same way to obtain the same result.”
• Doctrine of Colourable Variation: Under this doctrine, if a slight modification is made to the patented product or process but the essential features of the patented invention are involved in the new product then it constitutes patent infringement.

Patent Infringement and its Remedies

Patent infringement is punishable by law if it is not under the exceptions provided by the law. Willful infringement, when someone knowingly disregards the rights of the original patent (burden of proof on patent holder). Illegal manufacture or usage of an invention or modifying an already existing invention without the owner’s consent is known as patent infringement. Under Section 108 of the Indian Patent Act, ‘Reliefs in suit for infringement’ are defined. Clause 1 of the Section states, “The reliefs which a court may grant in any suit for infringement include an injunction (subject to such terms, if any, as the court thinks fit) and, at the option of the plaintiff, either damages or an account of profits.” Clause 2 states “The court may also order that the goods which are found to be infringing and materials and implements, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.”

Conclusion

Patents are intellectual properties that have a technical or scientific angle attached to them. Scientific discoveries play a pivotal part in Human development. To encourage more people into the field of innovation patent rights were thought of as one of the ways out. Patent laws provide economic security to the inventor by protecting his invention from unauthorized use or manufacture of a patented invention. Indian patent law provides remedies such as injunctions, damages, monetary compensations, etc. Although the infringement issues sometimes may cross international borders, these need to be addressed by stronger, stricter  International Laws for protecting patent rights. In patent laws, a balance has to be carved between protecting the interests of the inventor and making them available to the general public for the progress of the human race.