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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Patent law in India – An Intellectual Property Right

 

A brief history of Patent law in India

In India, the first step was Law VI of 1856. The major goal of the Act was to promote and encourage innovators to disclose their innovations and make their inventions known to the public. The Act was abrogated by Act IX of 1857, as it was passed without the British Crown’s permission. Fresh law was established in 1859 as Act XV of 1859 to give “special rights.” Specifically amended from the earlier law, this legislation is subject to an extension of priority time from 6 months to 12 months, in other words, the granting of exclusive rights to only beneficial innovations.Importers were exempt from the inventor definition under the Act. In 1872, 1883 and 1888, the Act was modified.

All past statutes were repealed by the Indian Patent and Design Act, 1911. The Patents Act 1972, in conjunction with the Patent Rules 1972, entered into force on 20 April 1972. The Patent Act is based on the recommendations of the Justice Ann report and the Radjagopala Iyengar headed Ayyangar Committee. Process patents relating to inventions relating to medicines, medications, food and chemical products were one of the recommendations.Again, The Patents Act, 1970 was modified to expand product patents into all technological fields including food, medicine, chemicals, and microbes by the Patents Act (amendment) of 2005. Following the modification, exclusive marketing rights provisions (EMRs) were removed and a provision was made allowing forced licencing. This provision was introduced. Provisions have also been added for pre-grant and anti-post demonstrations.

What does Patent mean?

A patent is the government’s exclusive right to prevent an inventor from using, making and selling an invention for a certain length of time. In their earlier invention, a patent is also available for development. The goal for promulgating patent law is to encourage innovators to make a greater contribution via exclusive rights to their innovations. Modernly speaking, the patent is sometimes referred to as the privilege provided to an inventor to develop any novel, useful, unobtrusive technique, equipment, manufacturing product or material composition. The Latin phrase “patente,” which meaning to “laid open,” is used as the word “patent” that is to make available for public inspection. To be patentable, there are three essential tests:

·         First of all, the innovation must be novel, which means that it must not exist.

·         Second, the invention must be unclear, i.e. the invention must be much improved on the former; the inventor will not be granted the right to have a patent just via technological changes.

·         Thirdly, the innovation should be of good use, thus the invention should not be utilised primarily in any unlawful job and beneficial in a good way to the world.

An innovation deemed to be new, where no such invention is publicly known, i.e. orally, in writing, or any other form, at the time of filing of the application. If such a thing is known to the public domain previously, something will not be called creative. The patent is restricted to 20 years from the time the patent application is submitted. A patent is a right on the territory. It can thus only be used in the nation in which it is awarded. A patent is a right on the territory. It can thus only be used in the nation in which it was granted. Any legal action against violation or violation of patent law can thus be conducted exclusively in that country.Each country must file for a patent to get patent protection in various countries. The Patent Cooperation Treaty (PCT) provides a means for an international patent application to be submitted in a large number of nations through a single patent application. However, only after the filing of the application is the PCT of a patent optional for a certain patent office.

According to Indian patent law, a patent can only be granted for a new and beneficial invention. The invention should concern the machine, product or material manufactured by a manufacturer or the manufacturing process of the object.An object or a technique of manufacturing may also be gained for invention. No patent is awarded for the substance itself in respect of medicine or medicine and some chemicals classes even if it is new, but the production process and the substance can be patented. A patent application must be truthful and the right to apply for a patent must be assigned to the original inventor or a man who has acquired the title from him.

 

Certain innovations are not patentable. A list of non-patentable subject matter, including medical and diagnostic procedures and novel plant or animal types, is provided in the European Patent Convention (EPC) legislation.A patent attorney may get further information on such topics. Nor are many innovations whose use would conflict with public order or morals allowed to be given patent (obvious examples being landmines or letterbombs). This is not considered as inventions, findings, innovations, science, mathematics or aesthetics, such as art or literary work or writing, schemes, rules and procedures for performing mental acts, playing games or doing business, information presentations and computer software. The following are not considered.

Essentials of applying for a Patent

The exclusions for what can be patented in India were specifically referred to in Sections 3 and 4 of the Indian Patents Act, 1970. To get a patent in India, several requirements have to be satisfied.

1.      Patent subject:Determination of whether the invention concerns the subjectmatter of the patent is the most essential consideration. The non-patentable subjectmatter of Sections 3 and 4 of the Law on patents. Except as provided in Sections 3 or 4, this indicates that the invention is susceptible to a patent.

2.      Newness: Innovation is an important criterion to determine an invention’s patent potential. Following Section 2 (l) of the Patent Act, a new invention or a new invention is defined as “no innovation or technology published anywhere in the nation or the world in any document before the filing date of the patent application.” The whole specification, i.e. the topic did not or does not come into the public domain.”

Simply stated, in principle, in the novelty criterion, an invention never to have been made public. It must be the latest one that has no prior art or comparable.

3.      Innovative steps or non-clearness: In Section 2(JA) of the Patents Act, inventive step is defined as the feature “inventive step which, as contrasted with existing knowledge, is technological or of economic relevance or of an invention which is not apparent to a person skilled in the art.” This means that a person competent in the same subject should not be aware of the innovation. For a knowledgeable individual in the same profession, it should not be innovative and apparent.

4.      Capable of industrial application: Section 2(ac) of the Patents Act defines industrial applicability as “an innovation that may be produced or employed in an industry.” This essentially indicates that in the abstract, the invention cannot exist. It must be able to be used in any industry, meaning that it must be practical concerning the patent.

These are legal conditions for an invention’s patent. Furthermore, the disclosure of a competent patent is another key condition for getting a patent. A competent patent disclosure indicates that the draught patent specification has to disclose the invention properly to allow an expert person in the same area to make an excessive effort in the performance of the invention.

 

Procedure to get a grant for the patent

After submissions have been made for the award of a patent, an application for examination shall be submitted to the Indian Patent Office for examination within 48 months after the priority date of the application or the filing date of a request. The applicant is given the chance to satisfy the objections set out in the report once the initial examination report is released. Within 6 months after the issue of the initial examination report, and on request by applicants, the applicant shall comply with the requirements and may be extended for further 3 months.If within the specified term of nine months, the requisites of the first examination report are not fulfilled, the request should be processed such that the applicant is abandoned. The patent is issued and notified in the Patent Office Journal after the elimination of objections and compliance with the conditions.

 

Report of a patent application by foreigners in India

As a signatory to the Paris Convention 1883 and the Patent Co-operation Treaty (PCT) of 1970, India is entitled to adopt any of the aforementioned treaties on the application for patent award in India.

 

Where a request for patent awards for an invention has been made in a Convention Country, a similar request for the patent grant may also be filed in India within 12 months from the date on which a basic application has been made in the Convention Country, that is, the country of origin, by the applicant or legal agent or assigned to such person.In this situation, the priority date is taken as the day when the basic request is submitted.

Pre-grantopposition

Any person under s. 11A of the Patents Law, 1970 can apply in advance of the application, as modified (“Patents Act”) or before patent award within six months after the date on which the application was published. Section 25(1) of the Patents Act provides the grounds on which the representation may be submitted. For the pre-grant opposition, there is no charge for filing representation. Representation for pre-grant opposition may be submitted even though no application has been filed for examination. However, only when a request for inspection is submitted within the specified term may the representation be considered.

Post-grant opposition

Any individual interested in a grant may submit an opposition in the official journal of the patent office within 12 months of the date of publication of the grant of a patent.

Opposition grounds

Certain reasons for opposition before and after grant are as follows:

1.      Patent obtained incorrectly;

2.      Preliminary release;

3.      before the priority date of such claim, the invention was known publicly or publicly used in India;

4.      the innovation is evident and involves no creative step;

5.      that the subjectmatter of any claim is not or is not patentable under this Act as an invention;

6.      the invention or how it is to be carried out is not adequately disclosed;

7.      That the patent was not applied within a period of twelve months from the initial request for protection for an invention made in a nation of convention or India for a patent awarded on convention application;

8.      That the full specification does not reveal or incorrectly identify the biological material utilised for the invention’s source and geographical origin;

9.      It was envisaged that the innovation was made available to any indigenous or local population in India or elsewhere, orally or otherwise.

Patent Term

Each patent in India is valid twenty years from the filing date of the patent application, independently if submitted on a temporary or full basis. However, the period of 20 years begins with the international filing date in case of applications submitted under the Patent Cooperative Treaty (PCT).

Renewal fee payment

It should be noted that every year, by paying the renewal fee that may be paid every year or lump amount, the patentee must renew the patent.

Patent Restoration

An application for the patent restoration may be filed with the specified fee within 18 months after the date of the patent cessation. After the request is received, the subject is communicated for further processing in the official journal.

Biology Material Patent

If the invention is based on a novel biological substance, it is vital to file it before applying in India to augment the description in the International Depository Authority (IDA). In this situation, it is not necessary to deposit the same if the biological components are already known.IDA is an Institute of Microbial Technology in Chandigarh, India (IMTECH).

Patent rights

When the patent is granted for a product, the patent proprietor shall have the right to impede the manufacture, use, offer for sale, sale or importation of the patented product in India. If the patent is in a method, the patent holder has the right to impede others from using the process by directly utilising a product acquired through the process, providing the product directly obtained by the process to be sold, sold and imported into India.

It is crucial to consider “What is not Patentable in India” before submitting a patent application in India? a simple discovery of a scientific principle, the definition of an abstraction theory, the mere discovery of all novel property or use for a known substance or process, of a substance obtained by a known method, of any substance that is frivolous, clear, contrary to well-established natural laws, in contravention of law, of morality.

Indian Patent Office’s maintenance of secrecy (IPO)

Every patent request is kept confidential up to 18 months from the date of filing or priority, regardless of the earlier date, and afterwards published weekly in the Official Patent Office Journal. Once such a patent application is published, the public may examine the documents and duplicate the documents upon payment of the specified price.

Patent Infringement

The infringement of patents is a violation involving the illegal use, manufacture, sale or sale offering of the subject matter or the invention of a patent of another. Many sorts of patents, such as utility patents, design and plant patents, are available. Unauthorized parties cannot utilise patents without the owner’s consent is the fundamental principle underlying patent infringement.

If the infringement of the patent takes place, in general, when the infringer uses patents from the precise shape, the court compares the substance under the patent with the subjectmatter being used by the “infringer.”Any unlawful production, sale or usage of the patented invention is infringed by a patent. The infringement of patents occurs either directly or indirectly.

Direct infringement of the patent: direct infringement is the most prevalent kind of infringement when the invention, which infringes the patent claims or performs essentially the same function, has been detailed.

Indirect patent infringement: Indirect infringement, which is classified into two kinds, is an additional form of patent infringement.

1.      Any conduct by a third party causing a person to violate the patent directly is induced infringement. This might include selling parts that can be only realistically used for a patented innovation, selling an invention with instructions for use in a specific way, in contravention of a method patent, or licencing an invention covered by the patent of a different person. The inducer must support a deliberate infringement but does not have to violate the patent intentionally.

2.      A contributive breach is the selling of material components which are for use in a patented innovation and which have no other commercial use. Indications overlap significantly, but breaches of contributors demand a high standard of delay. The seller’s infringements should be intended to directly infringe. A direct violation must also be indirect conduct to be an obligation for indirect violations.

Remedies to Patent Infringement

Patent infringement proceedings can lead to much greater losses than other legal proceedings. Certain legislation, such as the Patent Act, allows claimants to seek damages. Patent infringement is the unauthorised making or use of an invention or improvement of the invention or subject matter of someone else who holds, by permission, licence or waiver, a government-issued patent, without the approval of the owner. Patent infringement in the case of an infringement, many remedies must be accessible to patentees. Accessibility measures may include monetary remedy, equal relief, cost and lawyers’ fees in patent violation lawsuits.

Monetary relief is possible to avoid patent infringement by allowing monetary remedy in the form of compensating damages:

1.      Compensation for compensation – When the worth of the patent is determined, a patent proprietor may have lost profits for an infringement.

2.      Increased damage – Compensation costs in case of will or infringement of will can be levied up to three times.

3.      The time limit for damages – the right to damages may be claimed only after the issuing of the patent, and only 6 years before the filing of the infringement claim.

Equitable relief: court orders to prevent an individual from acting. There are two kinds of injection:

1.      Preliminary order – orders made in the first phase of proceedings or proceedings that restrict a party from doing a contested act (such as making a patent product)

2.      Permanent order – Final order of a court permanently suspending certain acts or doing various additional actions.

Conclusion

Patents may give high value and enhance returns on investments made in the development of innovative technologies for people and firms. Intelligent strategies to bring technology together with a wide variety of alternatives in search of how, where or when to apply patent should be used in the patent. For example, a firm can realise considerable savings and enhance the rights obtained by employing patents by focusing on international aspects and rules in certain nations.


The blog is authored by Aeshita Marwah, a student of University of Petroleum & Energy Studies

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