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.
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 In 1911, all previous acts were repealed with the enactment of the Indian Patent and Design Act of 1911.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.
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.
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.
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.
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:
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
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.
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.
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.”
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.