PATENT REGIME IN INDIA

This Article is written by Jeyachandrika L  & this article disscuss the concepts of  PATENT REGIME IN INDIA

ABSTRACT

The Intellectual property rights (IPR) are the legal rights that is granted by the authorized government to the Inventor of the invention to protect his interest over his invention, creation, symbol and designs. The protection for interest, rights given to inventor for specific period of time which exclude others from using it. Intellectual property rights are the exclusive rights granted for the human creativity for an intangible-properties. There are various Intellectual Properties namely, Patents, copyrights, geographical indication, designs, trademarks etc. Intellectual property rights are the exclusive rights grated for the creation of human mind, which gives protects the products of intellectual property, where no one can exploit the product without the prior permission of the rights holder. This paper explains only the inventions related IP rights that is Patent, paper broadly discusses patent laws regime in India.

Introduction to patents and its Meaning

A invention is a products of Intellectual property, which is been protected by patent laws. The word patent was derived from the latin word ‘patere’ meant to be to lay open, which means to make the product available for public openly. The process of patenting is granting license that carries exclusive rights or the title of owner for specific time period or limited period, these rights excludes the others from enjoy, manufacturing, selling of the invented product. The invented product is protected by law, the license holder is patent holder. The patent holder has full ownership over the invention, infringement can be penalized according to the Indian patent laws. In India, the law that governs patents known as Indian Patents Act 1970. The mighty intention behind this patent law regulations is to regulate, encourage and protect the interest of the Inventors across the country by granting exclusive rights for the product of inventions.

History and origin of patent laws in India

The origination of patent laws in India to be traced from the British colonial era, the Act VI of 1856 was the first legislation in India, which regulating patents. The very next year the patent legislation was repealed by another legislation Act IX 1857 because the previous legislation enacted without the Approval of Britain Crown. In 1859, new legislation was introduced for granting exclusive rights the law named Act XV of 1859. This legislation went major changes and amendment in the provisions. In 1872 the Act XV of 1859 was additionally provided protection for designs. The legislation renamed as ‘The Patent and designs protection act’ under Act XIII Of 1872 which was further amended in 1833. The act then amended in 1888. The amended act under went further amendment in 1911. The patents and designs act 1911 repealed all the previous legislation regarding patents.

In India, Post-Independence in 1970 Indian Parliament came up with new legislation to regulates patents, Indian Patent Act 1970 enacted and came into force. This act got amended in 1972 for the first time. The act again amended in 2005, Patent (amendment)act 2005, wherein this amendment brought major change in legislation, the patenting process extended for many fields that are technology, drugs, chemicals, and micro-organisms, act contains provisions for Compulsory Licensing.

Conditions for patentability In India

According to patent law 1970, has some conditions relating to patenting of invention, which needed to be satisfied by the patentee(applicant of patent). The conditions to be full-filled contained in the provision, section 3 and section 4 of the patent act 1970, provisions of the act also provides exceptions to the invention which are not patentable.

There three conditions to satisfied by the invention to get patented as follows;

1. The invention should be Novel, which means the invention should new to the filed, that should not be already existed invention.
2. The invention should be capable for Industrial application, which means it must be people friendly invention, it may be sell, exploit, manufacture by the public.
3. The invention should carry, inventive step in the invention. The invention must have improvement and should be a updated version of the previous invention which already exist.

Who can apply for patents?

According to section 6 of 1970, following persons are entitled to apply for patents;

1. Any person claiming Protection for invention is to be first inventor and true.
2. Any person is an assignee of the inventor can claim to be true and first inventor
3. Legal representative of the inventor in cause of deceased can make application to claim for patent protection for the product of deceased.

What can be patented according to Indian patent law?

1. Patent product, should be invention, which was been listed under section 3 and section 4 of Patents act 1970,
2. Invention should full-fill the conditions determined under section 3 and section 4.
3. Not each and every invention can be patent eligible, exception for patents, notably the products of nature cannot be patent eligible. Existing product cannot be patent eligible. Indian patent jurisprudence has various cases related to patenting of pharmaceutical products.

Types of patent in Indian Patent regime

Utility patents: This kind of patent covers processes, sytheses of issue, machines, and makers that are new and helpful. This is the most well-known kind of patent that individuals look for. It can likewise be acquired for new enhancements to existing cycles, pieces of issue, machines, and producers. As an Indian pioneer hoping to document a utility patent, one can apply for utility licenses in nations like Australia, UAE, China, Germany, France, and various different nations inside the European Association.

Design patents: Design Patent is characterized as the “surface ornamentation” of an article, and it can likewise incorporate the shape or design of an item. This sort of patent must be acquired where the plan is indivisible from the item. This sort of patent just safeguards the item’s appearance. If a singular has any desire to safeguard the utilitarian or underlying highlights of an item, the individual must likewise petition for a utility patent.

Plant patent: Plant patents are frequently acquired to safeguard new and unmistakable plants. To get this kind of patent are the plant is shouldn’t a tuber engendered plant (for example an Irish potato), the plant is shouldn’t tracked down in a crude state, and the plant can be agamically imitated. Agamic generation intends that as opposed to being repeated with seed, the plant is imitated by joining or cutting the plant. Like Utility patents, right now, there is no arrangement for plant patents in India and you can apply for a similar in Australia, the USA, and a few European nations.

Procedure for patent application:

The patentee should do a preliminary research, whether the object is patent eligible, the object satisfies the condition for claiming patents according to Indian law. This research is a pre-requisite to the application filing in the patent office.

1. Step 1: to file a provisional application in the patent office, that is if the invention is in the earlier stage, if the invention requires any additional development than the existing, in such case the provisional application can be filed by the patentee
2. Step 2: To mention and explain entire determination about the invention. The mandatory information were, field of invention, description of invention, how does it works, how the invention benefits the public. These are the mandatory information should be provided by the applicant of the patent in his application.
3. Step 3: To provide diagrams, drawings and sketching should be attached to the patent application, complete visualization of the invention helps the public to understand better about the invention on publication by the patent office.
4. Step 4: Publication of application in the patent office, after filing of patent application on complete specification of invention, the application been published after 18 months from filing. If applicant filed a provisional application then the 12 months tenure will be given for full-filling then invention specification. Once 12 months completed it will be published in the patent office for public opinion.
5. Step 5: examination Report, controller send the patent application to the Examiner, he inspects the invention in all the aspects and delivers the report on the invention and application.
6. Step 6: Answer to the objection raised on the application: every answer should be clarified by the applicant, which can be raised by the Examiner report. Patentee should prove his novelty over his invention. Objections raised should be resolved by the controller and patentee.
7. Step 7: After clearing all the competency, Patent will be granted by Patent office of India.

Grounds for objection:

1. Invention, patenting subject was been already published in anywhere at India or any other country.
2. Invention may be already existing product, or the subject which is already in use traditionally.
3. Invention which was not satisfies the any of the conditions said in the section 3 and section 4 of the Patent Act 1970.
4. Invention which was not comes under the ambit of patenting subject or meaning said in the act.
5. Failure to disclose the information about the invention.

Rights of the patentee

1. Patentee has the absolute right, till their patent term. Patentee has exclusive right over invention to sell, manufacture, distribute, and grant license to the third party for royalty. This is foremost right that is the Right to exploit.
2. Patentee has right to grant license to the third party for production, he has absolute right claim royalty for granting license for sale, distributing, manufacturing.
3. Patentee has right to sue for infringing his patent.

Obligation of patentee

1. Obligation towards Government, the authorized government can use the patented invention for their use, It may also tends to restrict or prohibits the use of patented products in some special circumstances. Government can also sell patent processed article for royalty, here patentee will get respected compensation for the act of the government. Patentee should be oblige towards the Government.
2. Compulsory licensing: compulsory licensing is an socialized provision in the act, which mandates the Patentee should grant License voluntarily to the third party with or without royalty in Emergency Circumstance of the country.

Patent Infringement

The main idea of patenting itself is the process of protecting rights and interest, where infringement is a violation of protection. Patent infringement is consider to be using, exploiting, manufacturing, selling of patented product without the prior permission of the Authorized patentee. Patent infringement can be occur directly or indirectly. Patents act 1970 has different remedies for subject matter of the infringement.

Remedies for infringement

Indian patent laws has provisions for recovery of damages.

1. Monetary reliefs can be claimed for, indemnity compensation, time period, and Increased damages.
2. Equitable relief can be claimed be approaching court for Permanent or temporary Injunction.

Conclusion:

Patents have the potential to increase a person’s or company’s return on the money invested in developing new technology. Licensing ought to be finished with a wise methodology that adjusts financial matters to carry out the innovation with a great many choices in the quest for how, where and when to patent. For instance, with an emphasis on global contemplations and guidelines in unambiguous nations, it is workable for an organization to accomplish huge reserve funds and further develop the freedoms acquired utilizing licenses.

References

1. https://articles.manupatra.com/article-details/Patent-Types-Laws-related-to-them-in-India

2. Introduction To Patent And Patent Laws In India – Bose , Siva Prasad

3. Intellectual property rights in India- Ahuja, Virendra Kumar

4. Indian Patent Act 1970- professionals Publication.