INTELLECTUAL PROPERTY LAW UNIT –V

Understanding patents is vital for inventors, entrepreneurs, and businesses that want to protect their ideas. The patent system grants inventors exclusive rights over their inventions for a limited time, usually 20 years. This exclusivity encourages innovation while ensuring the public can benefit from new ideas. This post explores what patents are, the historical development of patent law in India, types of patents, the process of obtaining a patent, recent amendments, and the rights and obligations of patent holders.

Concept of Patent

A patent is a legal right that lets the inventor control how their invention is used for about 20 years from the filing date. In return for this control, the inventor must publicly disclose their invention's details. This promotes knowledge sharing and sparks further innovation.

For an invention to qualify for a patent, it must meet three main criteria:

1. Novelty: The invention must not have been made public before the filing date.

2. Inventive Step: The invention cannot be obvious to someone skilled in that field.

3. Industrial Applicability: The invention must have a practical use in industry.

   
   

This framework ensures that only genuine innovations receive protection while still allowing others to build on these ideas.

Historical Overview of the Patents Law in India

Historical Overview of Patent Law in India

Concept of Patent

• A patent is an exclusive legal right granted for an invention, which can be a product or a process offering a new way of doing something or a new technical solution to a problem.

• The patent holder gets the exclusive right to use, sell, manufacture, and license the invention for a limited period (usually 20 years), in exchange for public disclosure of the invention.

🔹 Historical Overview of Patent Law in India

• 1856: First legislation on patents (based on British Patent Law of 1852).

• 1911: Indian Patents and Designs Act.

• 1970: The Patents Act, 1970 enacted — a shift from product to process patents especially for drugs and chemicals.

• 1999–2005: Major amendments to comply with TRIPS Agreement:

  • 1999: Introduction of Exclusive Marketing Rights (EMRs).

  • 2002: Streamlined procedures; introduction of product patents in all fields.

  • 2005: Full TRIPS compliance – Product patents extended to pharmaceuticals and agro-chemicals.

Patent law in India has a long history, beginning during the British colonial period with the first patent legislation in 1856. The Patents and Designs Act of 1911 later updated and structured the legal system around patents.

After India gained independence, there was a push for stronger patent laws to foster homegrown innovation. The Patents Act of 1970 was crucial in this regard as it aimed to improve innovation while addressing local needs, particularly in pharmaceuticals. For instance, the Act allowed for a unique regime that facilitated access to essential medicines while incentivizing local research.

Over the years, the patent law has seen several amendments to align more closely with international standards, especially following the TRIPS agreement introduced in 1995. Notably, after amendments, India began granting product patents in pharmaceuticals, which allowed companies to protect their drug innovations.

Patentable Inventions

Not all inventions qualify for patent protection. For an invention to be patentable in India, it generally needs to fall within the following categories:

• Processes and Products: This includes machinery, articles, and compositions that meet the patent criteria.

• Biotechnological Inventions: These involve living organisms or their derivatives, provided they pass the novelty and inventive tests.

• Chemical Compounds: New pharmaceutical compounds can be patented, though there are exceptions for existing essential drugs.

  
  

However, some inventions are excluded from patentability, such as:

• Scientific discoveries

• Abstract theories

• Artistic works

• Agricultural methods

• Inventions harmful to public order or morality

  
  

For instance, while a new medicine can be patented, a method for growing crops traditionally cannot.

Kinds of Patents

In India, there are primarily three types of patents:

1. Ordinary Patents: Standard patents for inventions that meet all required criteria, providing protection for 20 years.

2. Divisional Patents: These arise when an application includes multiple inventions, allowing each to be patented separately.

3. Patent of Addition: Granted for improvements on existing patents, these come with the same protection term as the original patent.

   
   

For example, a tech company could receive an ordinary patent for a new smartphone design, while a separate divisional patent might be applied for a new feature it developed.

Procedure for Obtaining a Patent

Obtaining a patent in India involves several key steps:

1. Filing an Application: Inventors must file either a complete or provisional application with the Indian Patent Office, including detailed descriptions and claims.

2. Publication: The application is published approximately 18 months after the filing date, marking the beginning of the examination period.

3. Request for Examination: Applicants must request a substantive examination within 48 months from their filing date.

4. Examination Report: The patent office issues a report assessing the invention's patentability against previous inventions, known as prior art.

5. Grant of Patent: If the application fulfills all requirements, a patent is granted, followed by a period where opposition can be raised.

6. Annual Maintenance Fees: After the grant, patentees are required to pay annual fees to maintain their patent. Missing these payments can lead to patent expiration.

   
   

This detailed process ensures that only well-considered applications receive patent protection, fostering a culture of accountability and quality.

The Patents Act, 1970: Recent Amendments

The Patents Act, 1970 has been amended multiple times to respond to emerging needs. Notable recent changes include:

• Compulsory Licensing: Clarifications have been made regarding when compulsory licenses can be issued - especially for public health reasons. This allows medicines to become more accessible during health crises.

• Patent Term Extensions: There is ongoing discussion on extending patent terms for specific pharmaceutical innovations to encourage further research and development investments.

• Digital Filing: The introduction of online application processes has simplified filing, making it easier for inventors across the nation to protect their ideas.

  
  

These amendments reflect India's commitment to balancing innovation protection with public access, like ensuring that life-saving medicines remain affordable.

Rights and Obligations of a Patentee

Obtaining a patent grants inventors numerous rights:

Rights of the Patentee

1. Exclusivity: Patentees can stop others from making, using, or selling their invention without consent.

2. Licensing: They can license their inventions, creating revenue streams while retaining ownership.

3. Litigation: Patentees have the right to sue for damages if their patents are infringed.

   
   

Obligations of the Patentee

However, there are responsibilities too:

1. Disclosure: Patentees must provide full specifications of their invention, promoting transparency.

2. Payment of Fees: Annual fees must be kept up to retain the patent.

3. Use of the Patent: While not mandatory, actively using the patent contributes to societal benefit and innovation.

   
   

Term of Patent Protection

In India, the term of patent protection usually lasts for 20 years from the filing date. This allows inventors ample time to commercialize their inventions and recover research costs. Yet, maintaining a patent requires timely payment of annual dues, as failing to pay can cause the patent to lapse prematurely.

Use and Exercise of Rights

The way patent rights are used can significantly influence various sectors. Patentees can:

1. Commercialize: They can manufacture and sell their inventions, maximizing their innovation's potential.

2. Prevent Infringement: They have the means to take legal action against unauthorized use.

3. Sublicense: Patentees can permit other entities to utilize their inventions, fostering broader commercial opportunities.

   
   

It is crucial for patentees to balance the use of their rights with ethical considerations and public interest.

Exclusive Marketing Rights

Exclusive Marketing Rights (EMR) are important, especially in the pharmaceutical sector. They allow patent holders to market products without needing to manufacture them. For example, a company might hold a patent for a new drug but not have the means to produce it; EMR allows them to sell it through another manufacturer. This can significantly increase access to essential medicines, but it must be managed to avoid monopolistic practices.

Right to Secrecy

Not every innovation fits the mold for patent protection. Some inventors choose to protect their ideas as trade secrets instead. This means they keep the invention confidential without a formal patent. However, unlike patents, trade secrets are not safeguarded against reverse engineering. For example, a secret recipe for a food product can be protected through confidentiality agreements but is not patentable.

Choosing between patent protection and secrecy often depends on factors like the nature of the invention and the market landscape.

The Notion of ‘Abuse’ of Patent Rights

Abuse of patent rights can occur when a patent holder's actions stifle competition or harm the public. For instance, charging excessive prices for essential medications can limit access. Legal frameworks exist to combat such abuses, and lawmakers and courts are increasingly vigilant in oversight to ensure that patent rights serve their intended purpose without negatively impacting society.

Infringement of Patent Rights and Remedies Available

Patent infringement happens when someone uses or sells a patented invention without permission. In India, several remedies are available for patent holders facing infringement:

1. Injunctions: Courts can issue orders to prevent ongoing or future infringement.

2. Damages: Compensation for losses due to infringement can be awarded by the courts.

3. Account of Profits: Patentees might be able to claim a share of profits made by the infringer.

4. Criminal Proceedings: Severe cases of infringement can result in criminal charges against the infringer.

   
   

These remedies are crucial for protecting inventors and encouraging a fair marketplace.

Summary Table: Patents Law in India

Topic	Key Points
Concept of Patent	Legal monopoly over an invention for a limited time.
Historical Overview	1856: First Act → 1970: Patents Act → 2005: TRIPS compliance (Product patents allowed).
Patentable Inventions	Must be new, non-obvious, and industrially applicable; not excluded by Sec. 3 & 4.
Kinds of Patents	Utility (mainly in India), Design, Plant (rare in India).
Procedure to Obtain Patent	Application → Publication → Examination → Grant → Opposition.
Recent Amendments	2005: Product patents; 2016 & 2021 (Drafts): Efficiency, digitalization, startups support.
Rights of Patentee	Exclusive rights to use, sell, license, sue for infringement.
Obligations of Patentee	Full disclosure, work the patent in India, pay renewal fees.
Term of Protection	20 years from filing date (Sec. 53).
Use & Exercise of Rights	Can license, assign, or use; subject to public interest.
Exclusive Marketing Rights (EMRs)	Pre-2005 provision; repealed after product patents introduced.
Right to Secrecy	Govt. can restrict patent publication for national security.
Abuse of Patent Rights	Non-working, refusal to license → may lead to compulsory licensing.
Infringement & Remedies	Infringement = Unauthorized use; Remedies = Injunction, damages, seizure, etc.

Important Case Laws

Topic	Case Law	Brief Summary
Patentability	Novartis AG v. Union of India (2013)	SC denied patent for anti-cancer drug Glivec under Sec. 3(d); emphasized public health.
Compulsory Licensing	Bayer v. Natco Pharma (2012)	First compulsory license granted for cancer drug Nexavar due to high price & non-working.
Infringement	Telemecanique & Controls v. Schneider Electric (2002)	Defined what constitutes patent infringement clearly.
Working of Patents	Roche v. Cipla (2009)	Delhi HC discussed affordability and accessibility of patented drugs.
Secrecy of Patent	Section 35–42 cases (mostly defense-related, not public domain)	Inventions related to atomic energy, defense may be restricted.
Exclusive Marketing Rights	Novartis EMR Case	Prior to 2005, Novartis had EMR for Glivec; withdrawn post-amendment.
Inventive Step	Biswanath Prasad Radhey Shyam v. Hindustan Metal Industries (1979)	Landmark case defining "inventive step".

Understanding the Patent Landscape in India

Navigating the patent system in India is intricate yet crucial for innovation. An informed grasp of historical context, types of patents, application procedures, and the inherent rights and responsibilities is essential for anyone involved in the creation and commercialization of new ideas.

As the demand for innovation grows, understanding and leveraging the patent landscape will be vital for fostering technological progress while promoting public benefit. The evolution of patent law in India is ongoing, presenting new challenges and opportunities for entrepreneurs, legal experts, and policymakers alike.