The concept of patent laws in India

The Concept of Patent Laws in India

Introduction

In our day to day lives, every single day the world discovers something new and innovative which was never thought before by any other person. These innovations or inventions require something what we call patents in the legal world. Many a times we have heard people saying ‘you should do a patent to your discovery…and so on’. The concept of patent falls under the category of intellectual property rights . In simple terms, patent means a protection to your exclusive research or founding. It means that whenever you patent your finding, no other person can use your research claiming that to be his and if so, then the law provides punishments and claiming of damages from the offender. In this article we are going to discuss the concept of patent laws in India.

Meaning and Basic Concept of Patent:-

Patents can be defined as an exclusive right given to the inventor by the Government so that no other person can make, sell or use the same invention for his purpose. The main objective of granting patents is to encourage the inventors and researchers to make more new things for the benefit of the society by granting them protection for their hard work. However, to get a patent one must pass the following test as mentioned below:-

• The invention must be unique and brand new that is it must not be in existence in any part of the world.

• The invention must be a significant improvement to the previous one. An invention cannot be patented by a mere upgradation of technology to the previous one. For example- A invented a time machine in 2010 which could just travel one hour back in the past . However, B invented another time machine in 2015 which could travel 10 years back in the past. In this case, B can patent his invention as it is a significant improvement to the previous one.

• The invention should be beneficial to the entire world. The invention should not be used solely for the purpose of illegal work. In simple words, the invention must be useful in a bona fide manner.

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These are the three basic things that an inventor should comply with in order to get his invention patented. No invention is considered as new if on the date of filing the application, any such invention is known to the public either in writing or in oral or any such other forms. The validity of a patent is 20 years from the date of filing the patent application.

Section 2(l) of the Patents Act, 1970 defines ‘new inventions’ as such inventions or technology that has not been anticipated by publication in any document or used in the country or any part of the world before the date of filing the patent application with complete specifications. The subject matter should not fall in public domain or that it should not form part of the state of the art. However the act does not define clearly as to what is a patent. Section 2(m) of the Act just mentions that patent means a patent for any invention granted under this Act.

What things cannot be patented?

The Patent Act of 1970 does not grant patents to all or any types of inventions that are presented to them. For this purpose Section 3 of the Patents Act mentions about the following things that cannot be held as ‘inventions’. These are as follows:-

• Any invention which does not have any serious value or which can be treated as an invention contrary to the well established natural laws of the country.

• Any invention which would cause harm to the public order or morality or may affect the well being of animal or plant life, if intended to use or commercially exploit.

• Any mere discovery of a scientific principle or an abstract theory which may not help in the development of the society.

• Any discovery of a new form of known substance which does not result in the enhancement of that substance or any discovery of a new use of a known substance unless it results in a new product or employs at least one new reactant.

• Any method of agriculture or horticulture.

• Any process for medicinal, surgical, curative for the treatment of human beings or of animals.

• Any kind of literary, dramatic, artistic or any other type of aesthetic creation.

These are the kind of inventions that does not fall under the definition of invention under this Act. In addition to this section, the patent act does not grant any patent for any invention relating to atomic energy as per Section (4) of the Act with reference to Section 20(1) of Atomic Energy Act, 1962.

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Rights and Obligations of the Patentee:-

Section 48 of the Patents Act confers the following rights to the Patentee. Such rights are mentioned as follows:-

Right to prevent third parties:-

Any person who is a Patentee to his invention which is a product or which is in process has the right to prevent any third party from making, using or selling the product anywhere in India unless such party has the consent to do so by the Patentee himself.

Right to grant License:-

Section 69(5) of the Patents Act 1970 gives the Patentee the right to transfer license or to grant rights of the patent or to enter into some arrangement for some consideration. However such assignment or license is to be in writing and should be registered with the controller of patents in order to be valid. If a document of assignment of patent is not registered, it is not admitted as evidence of title of the patent and such rule is applicable to the assignee and not to the assignor.

Right to Surrender:-

Any Patentee of a patent can at any time surrender his patent by giving a notice in the prescribed manner. The advertisement of such a surrender is required to be done in the Journal.

Right to Sue for Infringement:-

Every Patentee to a patent has the right to sue for a patent Infringement. Whenever a person uses the invention of a Patentee without his consent i.e either making the invention, using it or selling it for his own purpose is said to commit patent infringement.

These are the rights of a Patentee as conferred upon by this Act.

However, we must all know that with rights comes various obligations that the patentees must adhere to. The Patents Act of 1970 mentions about such obligations. These are as follows:-

Duty to Disclose:-

Section 8(1) of the Patents Act mentions that the Patentee has the duty to disclose all the relevant information about the invention at the time of applying or within six months from the date of applying for the patent.

Use of the Patents by Government:-

Any patented invention can be used by the government for its use only. The government also has the power to prohibit or restrict the use of any patent under specific circumstances. In case the patent is of any medicine or drugs, the government may without the consent of the Patentee, distribute such medicines to any hospital or dispensary for the benefit of the society. It is the obligation of the Patentee to comply with such rules of the Government.

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Compulsory grant of license:-

The controller of patents has the power to grant license to any applicant of a patent if such a patent has not been worked properly to meet the demands of the public at a reasonable price. The Government has the power to mandate a generic drug maker to make inexpensive medicine in India even if the patent for the product is valid. In such cases the Patentee of that particular product is obliged to follow such norms and regulations of the government.

Duty to respond to objections:-

In every cases, before a patent is accepted the Controller of patents passes such patent to an analyst who looks at the growth and gives an report to the Controller known as the First Examination Report(FER). In cases of any protests in the report, the Patentee must reply to such oppositions and complaints and must respond to such objections within a period of one year from the filing of the report. If any such Patentee fails to respond within the stipulated time, the application is deemed to be surrendered by the Controller of the Patents.

These are the various obligations or duties of the Patentee as provided in the Patents Act of 1970.

Conclusion:-

Patents are considered to be a protective layer that secures one invention or innovations from any third parties. They also add great value and increased returns for the investment made by an individual or company for the finding of new inventions. The intellectual property rights ensures the protection of such new ideas in the form of copyrights, patents and many other things in the legal world.

This is the concept of Patent Laws.

Endnotes:-

• Definition of New Inventions, Patents Act 1970, https://www.indiacode.nic.in/handle/123456789/1392?locale=en

• ‘Invention’ means a new product or process involving an inventive step and capable of industrial application. – The Patents Act, 1970 , Subs by s.3, ibid, for clause j (w.e.f from 20-05-2003)

• Meaning and Basic Concept of patents, https://www.mondaq.com/india/patent/54494/patent-law-in-india

• Rights and Obligations of Patentees in India, https://www.google.com/amp/s/corpbiz.io/learning/rights-and-obligations-of-patentee-in-india/

• Inventions that can be patented, https://www.upcounsel.com/what-can-be-patented

• Patent related treaties, https://www.wipo.int/patents/en/

• The word ‘Patent’ comes from the Latin word ‘Patentem’,https://www.etymonline.com/word/patent

Author: Soubhratra Bhattacharjee,
3rd Year, Jogesh Chandra Chaudhuri Law College

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