The term “patent” is derived from the Latin term ‘Litterae Patentes’, which means granting some privilege by the government to one or more individuals.
A patent is a statutory right to an inventor for the invention of a ‘new product or process’.
It is granted to the inventor by the government excluding others from processing, using, selling, manufacturing and importing the patented invention, for a limited period of time.
The patent gives a monopoly to the inventor to control the output and the price of the commodity patented by him. In other words, it is a reward to an inventor which encourages the inventors for scientific research developing new technology and new inventions for commercial utility.
A patent is a form of industrial property, the owner can sell the whole or part of this property, he can also grant licenses to others to use it.
The person to whom a patent is granted is known as the patentee.
The term patent is not defined under The Patent Act, 1970.
In pursuant to Section 2 (1) (m): “Patent” means a patent for any invention granted under this Act.
TYPES OF PATENT:
- Product patent – it is granted for a particular product. It means no one other than the patentee can make the product for a specific time period.
- Process patent – is given to a particular process of making a product and the nonproduct. It is given to the technology of making a product.
International Treaties and Conventions:
· THE PARIS CONVENTION (1883):—
The oldest treaty related to the patents is the Paris Convention, 1883.
It does not regulate any aspect of patents but it does establish a very important principle “right of priority”.
Someone who has filed a patent application in any country which is a member of the Paris convention, can within one-year file patent applications in other countries, climbing the filing date of the first application as the effective filing date of later applications.
An additional advantage is that in most countries the patent term is determined from the actual date of filing in that country, the term is effectively shifted one-year into the future.
· THE PATENT COOPERATION TREATY:—
The patent cooperation treaty (PCT) is an attempt to minimize the steps for filing patent applications in different countries with different national procedures.
Using PCT an applicant only needs to file ‘one single patent application’ which intimates all the countries in which he wants to have patent protection.
The international bureau, a division of the world intellectual property organization (WIPO), receives the patent application and checks that it meets the formal requirements after that the bureau transmits the application. Upon receiving a PCT application, the national officers then immediately start with the examination. However, the applicant must still convince each examiner in every country he designated that the invention is patentable.
· THE EUROPEAN PATENT CONVENTION:—An applicant files a single European patent application and designates the countries in Europe only in which he wants to have patent protection. The European patent office (EPO) then performs a novelty check and prepares a report. The examining division decides that the invention is patentable, the EPO grants a European patent.
· PATENT LAW TREATY (2000):—
The aim of the patent law treaty is to harmonize the formal procedure in respect of national patent applications. The PLT was conducted in 2000 and entered into force in 2005.
A set of formal requirements for National and regional applications was standardized;
- Requirements relating to forms & content of the application and standardized model international forms have been accepted.
- The procedures for filing applications were simplified and resulted in the reduction in costs for applicants as well as for offices.
- The implementation of the electronic filing of the patent applications is facilitated.
· TRIPS AGREEMENT:—
Trade-Related Aspects of Intellectual Property Rights is an agreement between the member nations of the World Trade Organization.
Part 2— Section 5: contains standards related to patents:
- Members may not exclude any field of technology from patentability
- Members may exclude from patentability any inventions contrary to public order or morality, human or animal treatment, plants, and animals
- The patent law must provide for a minimum term of 20 years of protection from the filing date
- The patentee’s exclusive rights must include the right to prevent the importation of the patented product.
- Compulsory licenses remain available and can be granted under the existing law.
The Patents Act, 1970 came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911.
- The first amendment in the Act was The Patents (Amendment) Act, 1999:
- Section 5(2) was introduced which provides filing for applications for patents in the field of drugs, medicines & agro-chemicals.
- Provisions of Exclusive Marketing Rights (EMR) were brought in.
- Section 39 was omitted. Enabling Indian residents to file patent applications outside India.
- Chapter II A was introduced in the patent rules dealing with an international application under PCT (Patent Cooperation Treaty.)
- The Second Phase of the amendment was brought in by The Patents (Amendment) Act, 2002:
- The term of a patent was extended from 14 years to 20 years.
- The definition of the word “invention” was made in conformity with the provisions of the TRIPS Agreement by enlarging the scope of the definition. And introducing the concept of inventive steps.
- Micro-organisms become patentable.
- Inventions relating to traditional knowledge were included in the list of ‘what are not inventions.’
- Section 39 was re-introduced prohibiting the Indian residents to apply abroad for the patent application, without prior permission or without first filing in India.
- Section 116 appellate board
- The third and final amendment was The Patent (Amendment) Act, 2005 and The Patent (Amendment) Rules, 2006 with retrospective effect from 1st January 2005
- Section 5 was deleted; Thus, this amendment has led to the dawn of the “product patent regime.”
- Abolition of exclusive marketing rights (EMR).
Head office – Kolkata
Branch offices are located at Delhi, Mumbai, and Chennai
The patent system in India is administered by the controller general of patents, designs, trademarks, and geographical indications.
Jurisdiction for filing the patent application –
|i. Indian applicants:||Determined according to the place of residence, place of business of the applicant or where the invention actually originated.|
|ii. Foreign applicants:||determined by the address for service in India.|
What can be patented:
A patent may be granted for an invention concerned with the functional and technical aspects of products and processes to qualify for the patent protection, the invention must fulfil the conditions of patentability:-
- NOVELTY – for an invention to be patentable, it must be new.
In order to be novel, the invention must not have been available to the general public.
A patent can be granted for a process as well as for a product. The invention need not be revolutionary, many inventions are merely a combination of old things. In some cases, a patent can protect a new use for an old thing.
The invention must not have been built before or described in a single document with sufficient information to allow someone to make the invention.
Exceptions to the Novelty Rule:
- Subject matter published without the consent of the inventor.
- That invention was published in consequence of the display in an exhibition notified by the government or in a newspaper, a grace period of 12 months is given in such cases to file the patent application.
- Public working for reasonable trials of the new invention.
- Previous communication to the Government of India.
- INVENTIVE STEPS – The subject matter of the patent must have that extra something beyond mere workshop improvements. It must be ‘non-obvious’ and ‘inventive’ (Nonobviousness/Inventiveness).
The Court added the requirement of non-obviousness or inventive ingenuity. This arose out of a desire by the courts not to allow a patent to cover any routine improvement.
There has to be an invention.
Section 2(1)(ja) – “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;
Thus, in addition to the non-obviousness two other conditions were added:
i. it should also involve Technical Advancement as compared to the existing knowledge,
ii. or having Economic Significance or both.
These terms are not defined in the Act and are unambiguous.
(Technical Advance is related to the inventive steps and Economic Significance means capable of industrial application.)
What are Inventions:
The Act provides the definition of invention in accordance with the provisions of the TRIPS Agreement.
Section 2(1)(j) – “invention” means a new product or process involving an inventive step and capable of industrial application;
Section 2(1)(l) – “new invention” means 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 a patent application with complete specification, i.e., the subject matter has not fallen in the public domain or that it does not form part of the state of the art;
Thus, according to the definition of ‘new invention,’ the Act talks about absolute novelty i.e.,
– the invention should have neither been used anywhere in the world
– nor published in any part of the world.
However, sections and provisions of this Act deals with relative novelty i.e.,
– not used in India
– and not published in any part of the world.
Further, the entire Act refers to the word ‘invention’ and not ‘new invention.’
Therefore, for all purposes, relative novelty is the criterion.
- INDUSTRIAL APPLICABILITY – The invention must be ‘useful’ for the purpose for which it was designed as specified in the disclosure and the claims.
An invention has “utility / usefulness” if:
- It gives benefits to the public.
- It is useful in achieving a particular purpose.
- It makes a process cheaper or better.
- It is advantageous under certain circumstances.
Section 2(1)(ac) – “capable of industrial application”, in relation to an invention, means that the invention is capable of being made or used in an industry;
An invention Is capable of industrial application if it satisfied the three conditions cumulatively:
i. can be made;
ii. can be used in at least one field of activity;
iii. can be reproduced with the same characteristics as many as necessary.
- PATENTABLE SUBJECT MATTER – To be patentable, an invention should fall within the scope of the patentable subject matter. The invention must be a product or a process in order to be eligible for patent protection.
An invention, which is a product or process, is not eligible for patent protection if it falls within the scope of non-patentable inventions mentioned under section 3 of the Act.
An invention related to Atomic Energy is not eligible for patent protection as per section 4 of the Act
DISCOVERY AND INVENTION:
Discovery ads to the amount of human knowledge, it does so nearly by disclosing something which earlier had been unseen.
Invention necessarily involves the suggestion of an act (must be an act) which results in a new product, result, process or a new combination.
Inventions in spite of being new, non-obvious, and useful cannot be patented under the Act.
Certain subject matters are statutorily labelled as “inventions not patentable.”
Section 3: Following are not inventions with the meaning of the Act –
- An Invention which is frivolous (silly) or anything which is contrary to the natural laws.
- An Invention which could be contrary to public order or morality which causes serious prejudice to human, animal or plant life or health or to the environment.
Eg. An instrument for counterfeiting currency notes,
- The real discovery of a scientific principle or discovery of any living thing or non-living substances in nature.
(A principle itself is not patentable, a principle coupled with the method of carrying the principle into effect can be patented.)
- Mere discovery of a new form of a known substance which does not result in enhancement.
- A substance obtained by a mere admixture resulting only in the aggregation of the properties.
- The mere arrangement or re-arrangement of known devices.
- A method of agriculture or horticulture.
- any process for the medicinal, surgical, diagnostic, therapeutic or other treatment of human beings or similar treatment to animals.
- Plant & Animals in whole or any part thereof.
- A mathematical or business method or algorithms.
- A literary, dramatic, musical or artistic work or aesthetic creation including cinematographic work or television production.
- A mere rule or scheme or method of performing an act or playing a game.
- A presentation of information.
- The topography of integrated circuits. (Governed by semiconductor integrated circuits lay-out designs Act, 2000)
- An invention which is in effect is traditional knowledge.
Section 4 – An invention related to Atomic Energy is not eligible for patent protection.