IPR in India
Patents Act
   PATENTS IN INDIA / INDIAN PATENT SYSTEM 1970


The word Patent originated from the Latin Word "Patene" which means 'to open'.

If a person makes, what he thinks is an invention, he or if he works for an entity, that entity can ask the Government, by filing an application with the Patent Office to give him a certificate in which it is stated what the invention is and that he is the owner of it. Such a right conferred upon the inventor is called 'Patent' by which the inventor, more properly called as the Patentee, can make exclusive use of his invention.

Thus a patent is a monopoly right granted to a person who has invented a new and useful article or a new process of making an article.

In India the Law relating to Patents is governed by the Patents Act 1970 along with the recent Amendment in 1999. The Indian Patents Act defines an invention as follows:

Invention means any new and useful:
i)
   Art, process, method or manner of manufacture,
ii)  Machine, apparatus or other article,
iii) Substance produced by manufacture and includes any new & useful improvement of any of them and an alleged invention.

Therefore, in order to be patentable, an invention must possess the following characteristics:

a) It should relate to a manner of manufacture.
b) The manner of manufacture should be novel.
c) It should be the outcome of inventive activity.
d) It should have utility.
e) It should not be contrary to law and morality.

The Indian Patents Act also lays down some norms as to which inventions are not patentable. Following inventions are not patentable:

a) An invention which is frivolous or which claims anything obvious or contrary to well established natural laws.
b) An invention, the primary or intended use of which would be contrary to any law or morality or injurious to public health.
c) The mere discovery of a scientific principle or the formulation of an abstract theory.
d) The mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs atleast one new reactant.
e) A substance obtained by a mere admixture resulting only in the aggregation of the properties of the components thereof or a process for producing such substance.
f) The mere arrangement or rearrangement or duplication of known devices each functioning independently of one another in a known way.
g) A method or process of testing applicable during the process of manufacture for rendering the machine, apparatus or other equipment more efficient or for the improvement or restoration of the existing machine, apparatus or other equipment or for the improvement or control of manufacture.
h) A method of agriculture or horticulture.
i) A process for the medical, surgical, curative, prophylactic or other treatment of human beings or any process for a similar treatment of animals or plants to render them free of disease or to increase their economic value or that of their products.
j) An invention relating to atomic energy.


COMPUTERS & PATENTABILITY:-
A computer program is not considered a patentable invention. It is protected under the Copyright Law but Computer Programs which have the effect of controlling the computers to operate in a particular form are embodied in physical form were held to be
patentable. A claim to a process for conditioning the operation of a computer and an associated plotter of known types to produce a layout was held patentable.

TERM OF PATENT:-
Under Indian Law the Term of Patents is not the same for all kinds of inventions. In respect of process, patents relating to drugs 7 foods, the term is 5 yrs. from the date of sealing of patents or 7 yrs. from the date of patents whichever is shorter. In respect of all other patents, the term is 14 yr. from the date of patent. A patent has to be kept alive only by paying renewal fee from time to time.

PATENT OFFICE: -
The Patent Office is the office established for the purpose of administering the various provisions relating to the grant of Patents. Its head office is at Kolkata; there are branch offices at Mumbai, Delhi & Chennai. The office is under the charge of controller of Patents.

PATENTS AMENDMENTS 1999. Back to Top

      TRIPS Agreement provides that patents shall be available for any invention whether products or processes, in all fields of technology (ART. 27). A transition period of 5 years is offered to all developing countries to make their laws compatible with the TRIPS Agreement. Moreover the countries that do not provide for product patents in certain areas can avail of further period of five years for amending their laws to provide for product patents. India does not grant product patents for food, drugs, pharmaceuticals and products produced by chemical process.

The Patents Amendment Act 1999 was passed in March 1999 to confirm with these international obligations and has retrospective effect from 1st January 1995. The main features of the amendments are as follows:

[I] Section 5 (2) has been inserted by this amendment which provides for filing of applications for patent of a product in the field of drugs, medicines and agro-chemicals. It also includes alloys, optical glass, semi-conductors and inter-mechanic compounds. These applications are kept pending till the law is suitably amended.

[II] Exclusive Marketing Rights (EMR):-
As per the TRIPS agreement, India has provided for EMR as a pipeline protection for pharmaceutical and agro-chemical products. EMR constitutes a monopoly right given to the patent applicant even before the grant of a patent. It is a right conferred upon the applicant to distribute and market his product in India without the same having been subjected to examination by applying the test and criteria for grant of a patent.

To be eligible for EMR the following conditions are to be fulfilled:

1) The applicant will have to file an application in India containing claims for products. Theses applications are kept in the " Mail Box" i.e. no action is taken on them.

2) File application and obtain a patent for identical invention in a member country.

3) Obtain marketing approval from the same convention country.

4) Obtain marketing approval from the appropriate authority in India; and

5) Then file an application to the controller of patents for the grant of EMR in India.

In case of inventions made in India, the applicant does not have to obtain product patent and marketing approvals from some other member country but has an option to have his process patent for identical invention obtained in India.

Also, EMR is not available for products for which applications have been made before 1.1. 1995
Exclusive Marketing Rights is only for selling and distributing the product but not for manufacturing the same and is granted for five years from the date of the EMR application or till the patent is granted on his mail box application, or his patent application is rejected whichever is earlier.
Amendments have also been made to protect the public interest.
EMR is available only till 31-12-2004

[III] An applicant in India can file an application for a patent outside India simultaneously while filing the same in India. Earlier the applicant was required to file such application only after the expiry of six weeks after the date on which the application was filed in India.

[IV] The present amendment also provides for the protection of security of India. According to the provisions the Central Government shall not disclose any information relating to any patentable invention or any application relating to the grant of patent under this Act, which it considers prejudicial to the interest of security of India. It shall take action including the revocation of any patent, which it considers necessary in the interest of security of India. This provision is universally found in the Patent Legislation.

[V] Further the Patent Rules have been modified to make them simpler. These rules have made the forms simpler, thus facilitating convenience and speed.

[VI] Patent Co-operation Treaty (PCT): India has joined the Paris Convention. Eventually it has become a member of PCT.

Chapter II (A) has been inserted in the Indian Patent Rules, by way of this amendment. This chapter deals with International Applications under PCT. PCT provides for filing of an international applications where protection is sought in different countries. Filing of such an application has the same effect as if the application had been filed separately in each of the countries in which protection is desired. The Indian Patent Office has been designated as the receiving office for PCT applications.