This article is written by Niharika Singh, from Ansal University, Gurgaon. It deals with ‘patent of addition’ laws in India.

Introduction

The word ‘patent’ suggests many kinds of images in our minds with respect to what it actually means. It portrays an image of copyright in our mind, but it is actually very different from a copyright. Now, what exactly does it refer to? There are creative individuals in our society who may, at times, invent or create a particular thing and actually disclose or put out that invention, for the benefit of mankind. This invention needs a patent in order to give the individual single rights over the particular invention, to prevent it from being copied or imitated without their knowledge. A patent falls under the body of law known as Intellectual Property Rights. These rights satisfy all needs that a creator may need to put out his product in the open without anyone being able to imitate or copy the product/invention. It makes it the sole property of the inventor. 

Intellectual property is said to be a particular product or creation of the mind, hence, it needs a different way of protection. It is different from all kinds of other property, in terms that it is said to be intangible. Intellectual Property, as the name suggests, may include inventions, literacy works, symbols, names, images, or even designs of the creator. 

Meaning of a patent  

A patent, as well as patent of addition, falls under this particular stream of law. There are two types of Intellectual Property – Industrial Property and Copyright. Patent falls under the category of Industrial Property, along with trademarks that also fall under the same category. A patent of addition is a term under the patent itself. 

In legal terms, a patent is described as a protection or a grant that is granted by a national government of a country, for an invention. It confers the individual whose invention it is, to be the only person with an exclusive privilege of making, selling and using the invention for which the patent is granted. 

There are many drug companies and even universities that seek patent protection in order to keep their research safe or to protect their laboratory techniques, specific genes or proteins, etc. for a patent to be granted to such inventions, they need to be new in nature, as well as unique, and not obvious to people working in the same field. 

A patent is necessary for every field so that their intellectual property is protected, as well as safely shared for the benefit of societies and mankind. 

Reasons for getting a patent 

An individual may feel the need to get a patent over his invention or creation under many circumstances. Some obvious reasons for getting a patent granted are –

1. A person may need a patent granted to his property in order to enjoy exclusive rights over the invention. 
2. The second reason is that the patent will ensure commercial returns, etc. to the inventor. The time and money spent on the invention or generating a new product will be ensured. 

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What does the patent system do

• Firstly, the most important thing that the system does is that it encourages research. 
• It also induces an inventor, or creator, to actually put out and disclose his inventions and products instead of keeping them as a secret. 
• It provides an inducement for capital investment as it encourages technological development. 
• Establishment of new industries is also encouraged in many ways. 

What can be patented

An invention must ordinarily pass four tests in order to be patentable –

1. The invention needs to fall into one of the five statutory classes –

• Machines
• Processes
• Manufactures
• Compositions of matter
• New uses of any of the above

2. The invention must be ‘useful’, according to the test.
3. The invention must be ‘novel’.
4. The invention must be ‘non-obvious’, in the sense that it should not be obvious to other competitors in the market or people in the same field. 

Different types of patents 

There are three different types of patents granted under the Indian Patents Act,1970.

1. An ordinary patent 
2. A patent of convention
3. A patent of addition

The second type of classification of patent is –

1. Process patent
2. Product patent

Patent of addition 

A patent of addition is a sub-part and a type of a patent. A patent of addition is referred to as a weapon that protects the products or processes, along with their improvements and variations in India. It serves as a useful purpose in covering many types of improvements or modifications which are missed out upon in the main patent and have later been improved or modified in some way. 

As a result of feedback from the market, improvements or modifications may ordinarily take place. Also, it may be an ordinary process for the inventor to make certain changes, amendments, and different modifications along with time, as per the nature of the invention. In such scenarios, the patent of addition plays a crucial role in order to safeguard and protect all that is added later and does not exist in the original patent.

Patent of addition comes into the picture for protecting novel, industrial applicability, and non-inventive modifications or improvements that have been done later, to an already filed or a granted patent application. 

Innovations that are built upon existing knowledge, along with modern technological changes are higher in comparison with existing products. If the improvement or modification is inventive in its own right, a patent of addition can easily be converted even into a standard patent. We can say that a patent of addition is used solely to protect any improvement or modification, that has been made over the originally patented product or process, in India. 

It is also important to note that the patentee does not have to pay any extra fees in order to file for a patent of addition, and the improvement or modification due to which the patent of addition is needed has to be something more than a workshop improvement, all these advantages are also supported by the fact that a patent of addition cannot exceed the term of a regular ppatent. 

Related provisions in the Patents Act, 1970

As per the provisions of the Patents Act, 1970, Sections 54, 55, and 56 deal with the patent of addition. Filing and prosecution, etc of the patent of addition is also mentioned within these sections. The sections are as follows – 

Section 54 of the Patents Act, 1970 – patents of addition

• This Section is merely dealing with the applications, etc. for the patent of addition. 
• According to the provisions of this Section, If an applicant feels that he has come upon modification or improvement of an already patented invention, another application can be made for a patent of addition in respect to such improvement or modification.
• Such an application may be granted by the controller as a patent of addition.
• Further, it was held in Ravi Kamal v. Kala Tech and Ors, 2008 by the Honourable Bombay High Court that the terms ‘improvement’ and ‘modification’ involve a reference to an existing state of affairs and it was amply made clear here, that only the patentee/patent application of the main patent is entitled to apply for a Patent of Addition. 

Section 55 of the Patents Act, 1970 – Term of patent of addition

• The term of every patent in India is said to be 20 years from the date of filing the application. 
• This Section clearly states the term for a patent of addition. In other words, we can say that this Section grants the term for the patent of addition.
• It clearly states that a patent of addition will only be granted for a term equal to that of the main Patent of the invention. 
• The patent of addition shall remain in force until the original Patent of your invention has not expired.
• There are no renewal fees that need to be paid for a patent of addition. But, if any such patent becomes an independent patent, under the provisions of Section 54, the same fees as-is for an independent patent is payable. This is only if the addition, which may be a modification or improvement, is not considered to be an addition and is given an independent patent rather than a patent of addition. 
• A case that completely illustrates the above mentioned is The Ahmedabad St. Xaviers College v. State of Gujarat & Anr, 1974

Section 56 of the Patents Act, 1970 – Validity of patents of addition

• The grant of a patent of addition shall not be refused, and a patented granted as a Patent of Addition can also not be refused or revoked. 
• This Section states certain grounds on which the same, mentioned above, cannot be done. It is explained in this Section in detail.
• The same was also held in Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors., 2006. The validity of the patent of addition was the main issue. 

Essential features of patent of addition

• As we have read above, the patent of addition falls under Sections 54,55,56 of the Patents Act, 1970. 
• It refers to an application that is made for a patent undergoing improvement or modification in a particular invention, disclosed or described in the main application for which the patentee has already applied. 
• Patent of addition must be on the same date or a date after the date of filing the main application.
• Even after the grant of the main application, the patent of addition can still be filed. 
• If there is an issue that arises pertaining to the patentee, and whether or not the invention should get a patent of addition or should get a different patent altogether, the controller may repeal the independent patent and grant the same as a patent of addition. 
• Each patent of addition needs to include a reference to the main patent and also include a definitive statement that the invention is an improvement or modification of the original invention. 

Term and renewal of patent of addition

The term of the patent of addition is clearly stated in Section 55 of the Patents Act, 1970. It provides that a patent of addition is granted for a term that is equal to that of the patent of the main invention, and that has not expired. If under any circumstances, the patent for the main invention is revoked under the Act, the patentee can have the patent of addition as an independent patent for the remainder of the term on request to the controller or Court in the prescribed manner. Hereafter, the patent of addition shall continue in force as an independent patent accordingly. 

In respect of a patent of addition, there are no renewable fees that have to be paid by the patentee. But, as soon as such a patent becomes an independent patent, the same fees become payable by the patentee, upon the same dates. 

The grant of a patent of addition cannot be refused or revoked. It cannot be invalidated either. The validity of a patent of addition is also not claimable on the ground that the invention is the original subject of an independent patent. 

All of these terms and renewal are clearly stated in the Indian Patents Act, 1970. 

Ground for revocation 

The grounds for revocation of a patent of addition involve the following – 

• Lack of inventive step.
• Use of the Main Invention described in the complete specification.
• Use of the improvement and modification of the main invention described in the complete specification. 

Under the provisions of the Act, it has been dismissed that patent of addition can only be granted if it has an inventive step over the main application.

Section 56(2) of the Patents Act, 1970 clearly states and clarifies that the disclosure in the main application or patent shall be considered in determining the novelty of the patent of addition.

Conclusion

We can conclude by saying that the patent of addition is an advantage to the applicant or the inventor, in order to safeguard any improvements and modifications that he makes in his invention. The patent of addition is most useful in protecting products or processes that need to be upgraded, improved, or modified with time. The only disadvantage of the patent of addition is that it cannot exceed the main patent, the rest of it is entirely beneficial to the patentee for his work.

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