This article is written by Daisy Jain, a B.COM. L.L.B. student at the Institute of Law, Nirma University. This is an exhaustive article that deals with an overview of patents and what a patent is. This article also talks about the criteria for patentability and landmark case laws related to patents.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Suppose that you have a groundbreaking idea. You attempt to create the application. Now that your innovation is a reality, it functions. However, along with all the enthusiasm over this creation comes some worry that the concept will be stolen. One might apply for a patent for their innovations to get ownership of the invention and prevent it from being replicated. Let us walk you through real-life examples of patents. As many of us would have seen a movie called “Padman”, which is based on a real-life based story of a social entrepreneur from Coimbatore, Arunachalam Muruganatham. He got the patent rights to invent the low-cost sanitary pad-making machine. I hope now you understand a little bit about what a patent is, and to understand it in depth, let us go through the article.
A patent is one of the types of Intellectual Property Rights. Many people are unclear about the concept of intellectual property rights. The average person assumes that IPR is reserved for extremely serious inventors when they hear people discuss it. It is untrue. Anything you make with your mind belongs to you and is intellectual property. Such a creator’s ownership rights over their works are known as intellectual property rights. It is as simple as it looks difficult. To claim IPR, you do not need to invent something revolutionary. Intellectual property law allows even simple works of art created by children to be safeguarded. An intellectual property right is an intangible right. Like normal property, you have a right to your intellectual property. An exclusive monopoly is granted to the owner of the intellectual property right to profit from the creation. You can decide whether to sell it or keep it in reserve. The catch is that only you can decide whether to give consent to someone using your intellectual property.
Types of Intellectual Property Rights
Intellectual property law governs the use of Intellectual Property Rights (IPR). Industrial property rights and copyrights are the two categories into which intellectual property rights fall. Patents, trademarks, designs, integrated circuits, geographical indications, plant variety protection, trade secrets, traditional knowledge, and biodiversity are all examples of intellectual property rights. Authorship rights, artistic rights, film rights, transmission rights, performer rights, etc. are all included in copyrights. Trade secret protection (like data exclusivity) is non-existent in India.
Tenure of Intellectual Property Rights
While other properties’ patent terms range from 10-15 years and are extendable for some chosen properties, industrial property rights patent terms last for 20 years from the date of the initial filing. The protection period for copyrights, particularly author’s rights, is the author’s lifespan plus 60 years. The length is 60 years in several different situations, particularly copyright in government works, works of public enterprises, works of international organizations, etc.
Objective and role of international and national governing bodies
The World Trade Organization (WTO) replaced the General Agreement on Tariffs and Trade (GATT) and added protection for individual rights like intellectual property rights. The fundamental goal was to create an international trading system that was predictable and stable while keeping an eye on and resolving international conflicts. With the founding of the WTO, trade-related aspects of Intellectual Property Rights (TRIPS) came into effect. India has been a signatory since 1995, updating the infrastructure of the Patents Act, 1970, within the allotted transition period. The World Intellectual Property Organization (WIPO) is a global organization that fosters cooperation between nations in the development, use, and preservation of works of the human mind for the economic, social, and cultural advancement of all people.
The Department of Industrial Policy and Promotion (DIPP), the Department of Pharmaceuticals, and the Department of Commerce, various Ministries are crucial to India’s application of intellectual property rights, particularly those about patents. Applications for patents are accepted and granted at the Indian Patent Office (IPO), which has offices in Mumbai, New Delhi, Chennai, and Kolkata.
Conventions and treaties dealing with Intellectual Property Rights
The Paris Convention (PC), 1883, and the Patent Cooperation Treaty (PCT), 1970, play a significant role concerning patents among the several conventions and treaties dealing with intellectual property rights. The Paris Agreement includes a clause that allows countries that are party to the Convention to take precedence over the invention. In other words, the Convention has tried to bring national treatment as both India and the foreign national’s country are parties to the Paris Treaty. The Convention has brought about national treatment, where a foreign person is treated as an Indian national.
For the Patent Cooperation Treaty (PCT) members, a single patent filing process has been introduced under the Patent Cooperation Treaty. The Treaty is advantageous since it eliminates translations and repetition of patent office processes through single filing and examination procedures. Additionally, the provision saves time while saving money during filings.
What is a patent
Before getting into detail about what a patent is, let’s discuss something else first. You have a talent for construction and a desire to amass wealth. Unfortunately, that idea was never realized since someone else stole your idea because you were unaware of a (not so) minor thing called patents. By registering your idea for a patent, all of this can be prevented.
A patent is a legal document that the government issues to the creator, giving him the exclusive right to sell, manufacture, use, and import the invention for a predetermined amount of time following the publication of the idea. By limiting who can sell their products on their behalf, patents are required by law to safeguard innovators. The sources of the phrase “patent” are old French, old Latin, and old English. From the Latin “patentem” and French “patente”, which both indicate the open letter, it first appeared in the late 13th century. In the 1580s, the phrase took on its current meaning when it was explained as a government-issued permit to create and sell a specific good.
A patent is used in business to develop, promote, and sell a product. For many of the products that people purchase, patents are employed. Once a patent application has been accepted by the government, it generally lasts for 20 years from the application date. An official government letter patent is the document that gives a person or business the sole right to sell a product. The patent applicant or seller may start collecting royalties for their goods once the patent has been processed and authorized. A royalty is a payment made to the creator of a product in exchange for the right to use it; it serves as reimbursement for their labor. This might take the form of a television commercial producer paying a songwriter royalties for the usage of their music in a commercial. At least until the product is released to the market, patents and royalties are typically maintained confidentially by firms through solid agreements and trade secrets. Regardless of whether a patent application is filed with a provisional or complete specification, all Indian patents have a 20-year term beginning on the date of filing. The 20-year period, however, starts on the date of the international filing for applications submitted under the Patent Cooperation Treaty (PCT).
Types of patents
To protect various types of inventions, various forms of patents are available. Competent innovators can use the various patent application types to obtain the legal protection they require for their discoveries:
Utility patent
When most people hear the word “patent,” they generally think of inventions covered by utility patents. A utility patent is a technical document that describes in great detail how a new device, method, or system operates and provides a strong form of protection. A wide variety of inventions, including the broom, computers, business procedures, and medications, have been protected under this patent. The utility patent duration is 20 years.
Design patent
This patent protects adornment on a practical object. A design patent, for instance, can safeguard the appearance of a shoe or a bottle. The majority of the actual paper is made up of images or sketches that depict the useful item’s design. Because a design patent uses so few words, they are notoriously challenging to search for. Software businesses have recently exploited design patents to safeguard user interface components, even the design of touchscreen devices. The design of the invention must be both practical and unique. The original Coca-Cola bottle design is an illustration of this kind of patent. The design patent duration is 15 years.
Plant patent
A plant patent covers novel varieties of plants developed through cuttings or other non-sexual methods, as the name implies. Genetically modified species are typically excluded from the scope of plant patents, which instead emphasize traditional gardening. The plant patent duration is 20 years.
Types of patent applications
There are four types of patent applications:
Provisional patent application
When you are not quite finished with your idea and want to draw time to continue working on the research and creation of your innovation while at the same time not wanting to lose out on the priority date, you file a provisional application. It’s possible for a tentative specification to have claims or not. You have 12 months from the date of filing a provisional application to submit a full patent application. Your application will be canceled if you don’t submit a full patent application within 12 months following the filing of your provisional patent application.
Divisional patent application
If a claimant’s application includes claims to more than one invention, the claimant may split the application and submit two or more applications, one for each invention, on his own or in response to an official objection. A divisional application is a kind of application that is split from its parent application. All divisional applications shall have the same stated priority date as the parent application. A divisional application’s patent period is 20 years from the time the main application was filed.
Additional patent application
An application for a Patent of Addition may be made by the applicant when he develops an enhancement or modification of the invention specified or revealed in the main application for which he has already made an application or secured a patent. Only after the main or parent patent has been obtained may an additional patent be issued. Throughout the duration of the primary patent, there is no need to pay a separate renewal fee for the Patent of Addition. A patent of addition must be issued for the same duration as the patent for the primary invention and terminates with it. The date of filing is the day that the patent application for the addition was submitted.
Complete patent application
A complete application is one that is submitted along with a complete specification that fully and specifically describes the invention, including the best way to implement it. It may be submitted immediately or within a year of the provisional patent application’s submission.
Difference between patents, trademarks and copyrights
| Parameters | Patent | Trademark | Copyright |
| What is safeguarded? | Inventions include modifications to existing processes, tools, manufactured goods, and material compositions. | Any word, expression, sign, and/or artwork that specifies and sets one party’s goods apart from another’s in terms of their source. | Books, essays, music, photography, sculptures, dances, sound recordings, movies, and other original works of authorship. |
| Conditions to be safeguarded | An invention must be novel, practical, and original. | A mark needs to be unique (i.e., it must be able to ascertain the origin of a certain good). | An original, innovative, and tangible piece of work is required. |
| Duration of protection | 20 years | Whenever the mark is utilized in commerce. | The author’s lifespan is +70 more years. |
| Rights conferred | Right to stop others from manufacturing, distributing, or bringing in the patented innovation | Right to use the mark and to stop others from using it or marks that are identical in a way that could lead to chaos about the source of the products or services. | Right to control over the copyrighted works’ dissemination, presentation in public, and exhibition, as well as their reproduction and creation of creative works. |
Criteria for patentability
Only if an innovation complies with the criteria for patentability will it be eligible for a patent grant in India. The innovation must meet all of the conditions that evaluate its suitability for a patent grant from various angles to be considered patentable. Compared to other standards, some of them are easier to meet, but all of them are equally crucial for determining patentability. The following are the three requisites for patentability criteria:
Novelty
Only if a product or method is both innovative and inventive, will it be regarded as an invention under the Patents Act. Simply said, novelty refers to anything being new compared to what it was on the priority date of the patent application. If an innovation departs from the “prior art,” which is what already exists, it will be seen as unique. Previous art references are never pooled for novelty analysis; rather, novelty is always evaluated in light of a particular prior art reference at a time. However, a prior art citation may be interpreted to include general knowledge of the art that isn’t stated explicitly in the reference. Novelty is included in many sections relating to inspection, anticipation, objection, and revocation but is not defined by the Patents Act.
Inventive step
Of all the criteria for patentability, the inventive step criterion is the most ambiguous and difficult to define. The Indian Patents Act offers non-obviousness and technical advancement or economic relevance as two criteria for evaluating inventive steps. The Patents Act defines inventive steps in Section 2(ja). The inventor must make a creative contribution to the invention. It needs to be something that a skilled craftsperson wouldn’t anticipate. Let’s say an innovator creates a device to address a technological issue. A different expert in the same sector offers the same solution by drawing on his knowledge or absorbing instruction. The inventor’s technological solution won’t be regarded as original in that situation because it was just a suggestion or motive. The Supreme Court defined the term “inventive step” in the Biswanath Prasad Radhey Shyam case in 1978, and it is being used for inventive step analysis today.
Industrial application
According to Section 2(ac) of the Patents Act, “the creation is a patent of being used or created in a sector.” It implies that a product must be useful to be patentable because the invention cannot exist in a vacuum and must apply to all fields. A product will be deemed to be industrially applicable if it can be produced consistently and has at least one application in a given industry. For a procedure to meet this condition, the industry must be able to employ it. Users that are uncertain, hazy, future, or non-specific are not regarded as legitimate users. The same is true when a product or procedure is used in a minimal or untrustworthy way.
The Delhi High Court noted that an invention must be economically feasible in a case involving Cipla and Roche after reviewing various Indian and international cases about the utility or industrial application criteria. Commercial use is required, although commercial development need not be demonstrated. Fundamentally, the invention must serve the function stated in a patent specification and have a practical application. Nothing more will be necessary to demonstrate an invention’s utility for patentability.
What cannot be patented
A novel product or technique must have an innovative step in order to be patentable in India. It may also be manufactured or used in the industry. The invention must also satisfy certain criteria relating to novelty, innovative step, and industrial applicability in order to be patentable. Please go through the criteria of patentability as discussed earlier in this article before moving on to “What cannot be Patented in India?”
Sections 3 and 4 of the Indian Patent Act, 1970 deal with those discoveries or methods that do not fall under the ambit of the Act and therefore are not patentable. The reasons why these are not patentable are that sometimes the inventions or discoveries are against the public policy, the particular invention or discovery has already existed in nature, meaning thereby, that any discovery of living or non-living thing is already existing in nature and is known, and invention or discoveries are against the natural laws. The following are some of the examples of inventions that cannot be patented:
- A patent cannot be issued for a device that is used for gambling machines, bank lockers, or housebreaking. A patent cannot also be granted to software that can help someone get into someone’s email by hacking it. These inventions are frivolous in nature and go against natural laws.
- Any invention of medical treatment or a method related to medical treatment cannot be patented. The reason is that the doctors or surgeons will not be able to perform surgeries because they will be worried about patent infringement at that point in time.
- Any discovery or invention cannot be patented if it is against the established natural laws or principles. For example, if someone makes a clock that has 10 hours, which is divided into 100 minutes and 100 seconds each. It shall go against natural laws or universal law.
- This does not apply to all innovations or discoveries, such as Isaac Newton’s law of gravity or Albert Einstein’s relativity formula. Simply put, a scientific theory or a rule of nature cannot be patented.
Content of a patent
The title, bibliography, description, previous art, synopsis, high-quality description of the invention, statistics, figures, and claims that include both independent and dependent claims, are all included in a patent document. Understanding that researchers, including scientists and academicians, are accustomed to writing research articles for journals and the people knowledgeable in research activity create their own complete/provisional specifications.
Procedure for getting a patent in India
When the application for a patent is filed for the grant of a patent, an examination of the application has to be conducted in the Patent Office within 48 months from the date which the applicant specifies or from the date the applicant has filed for the grant of a patent. The applicant has a chance to address any concerns raised in the first examination report once it is released. The applicant must comply with the conditions within 6 months of the initial examination report’s release; however, the applicant may seek an additional 3 months. If the first examination report’s conditions are not met within the allotted nine months, the application is deemed to have been withdrawn by the applicant. After all objections have been resolved and all conditions have been met, the patent is awarded and published in the Patent Office Journal.
Infringement of patents and its types
The illegal use, production, sale, or offer to sell of the subject matter or a proprietary invention by another is known as patent infringement. Utility patents, design patents, and plant patents come in a variety of strong forms. The core tenet of patent infringement is that inventions cannot be used by unauthorized parties without the owner’s permission. Either directly or indirectly, patents are violated:
Direct patent infringement
Direct infringement is the most frequent type of patent infringement when the infringing invention is actually disclosed or serves essentially the same purpose. In order to directly infringe a patent, a person needs to create, use, offer to sell, or sell a patented invention without authorization. If a product or service fits all of the criteria for a claim in the infringed patent, it qualifies as an act of infringement even if it is not an exact replica of a good or service provided by the patent holder. Generally, direct patent infringement happens when a device that is commercially advertised, sold, or utilized without the owner’s consent is materially similar to a patented device or innovation.
Indirect patent infringement
It is further divided into two categories:
Inducement infringement
An act by a third party that directly induces another person to violate the law is known as an inducement infringement. This could involve leasing an innovation that is protected by another person’s patent or selling parts that can only be used practically with a patented device. Other examples include selling an invention with directions to use it in a certain way that violates a method patent. The inducer needs only help with deliberate infringement—intentional infringement of the patent is not necessary.
Contributory infringement
The selling of materials created specifically for use in a patented invention but with no other commercial purpose is known as “contributing infringement.” While there is a substantial overlap with indicators, contributing infractions call for a considerable amount of time. Seller obligations must be broken to directly infringe. A direct breach must also be indirect conduct for there to be a responsibility for it.
Compulsory licensing
One of the most significant provisions of the Indian Patents Act, 1970, provided that certain requirements are met, is compulsory licensing. Any interested person may, under the following criteria, apply to the Patent Controller for the issuing of a compulsory patent license at any time following the passing of three years from the date of the sealing of a patent. A voluntary license is granted by a person to use any good. Possessing a voluntary license is the first step. There are three justifications for requesting the mandatory license. After three years from the day the patent was granted, the license may be requested at any time. Anyone may request a compulsory license. Whether it be a real person, a fake person, or a business.
Grounds for granting compulsory licensing
- There must be a justifiable demand.
- The item must not legitimately be in the public domain.
- The patented invention is not being used on Indian soil.
If one nation produces the COVID 19 vaccine, the other nations will receive the identical vaccine. The WHO and TRIPS have public health on their agenda. The government has issued a regulation stating that the vaccine production procedure must be granted as a country’s mandatory license for other countries. PPP is a relative concern in this situation and represents the triangle of public health, patent, and pandemic. The controller’s authority concerning the mandatory license is discussed in Section 88. The controller must look at the nature of the invention and determine whether it has the ability to file an application.
Landmark case laws surrounding patents
Novatris Ag v. Union of India (2013)
This is one of the most significant cases that deals with Section 3(d). In this case, the Supreme Court denied Novartis’ request for a patent on its anti-cancer medication Glivec. Novartis is a Swiss pharmaceutical corporation. Chronic Myeloid Leukemia is treated with Glivec. The patent office had rejected Novartis’ claim on the grounds that it was in conflict with Section 3(d) of the Indian Patents Act and that the medication did not demonstrate any known therapeutic efficiency over its prior form. The firm disputed this, and the matter was ultimately debated before the supreme court. The Court was required to think about the following:
- Is the invention covered by Section 3(d)?
- What does Section 3(d) mean?
Glivec was not a completely new material, according to the Supreme Court, but rather a new version of the drug. As a result, it did not pass the Section 3 test (d). The section lists increased effectiveness as a precondition, but this need was not met. Novartis made an effort to counter this, but in vain. According to the court, a drug’s efficacy in the context of pharmaceuticals refers to therapeutic efficacy; just because certain patients benefited from it does not imply that it met this requirement. The Court further stated that in order to preserve the lives of the general public, stricter conditions must be implemented when issuing patents for life-saving medications. The final outcome must be avoided at all costs.
Cipla Ltd. v. F.Hoffmann-La Roche Ltd. and Anr. (2015)
Hoffman, which is a multinational healthcare Swiss company, initiated a lawsuit against Cipla Ltd, which is India based pharmaceutical company. The issue arose in the Delhi High Court regarding the Roche medicine “Erlotinib,” which Roche marketed as TARCEVA. Erlotinib Hydrochloride is the substance that serves as the foundation for both Roche and Cipla. After claiming to have received a patent for “Erlotinib,” Roche began marketing the medication as TARCEVA in February 2007. It was revealed in January 2008 that Cipla intended to introduce a generic form of “Erlotinib.” This prompted Roche to file an infringement claim against Cipla. In the end, Roche was awarded a favorable verdict. The judgment clearly outlined the rules that apply to several important components of a patent infringement. Cipla was ordered to account for the production and sale of Erlocip, and Roche was awarded costs in the amount of Rs. 5, 00,000.
Diamond v. Chakrabarty (1980)
The focus of this case is microbes, particularly genetically modified microorganisms. A process patent was requested. The method, end result, and constituent parts were all claimed as patentable. It was questioned if bacteria could be patented because they are living organisms. Only microorganisms found in living things are patentable. The Supreme Court also opined that anything manufactured by man, including human-made creatures, is a subject matter for patentability.
Dhanpath Seth and Ors. Nil Kamal Plastic Crates Ltd. (2007)
As bamboo can be used for manual cultivation and is lightweight, Dhanpath created a Kilta-like gadget. Neel Kamal Plastic then began utilizing it without paying royalties to Dhanpath, preserving the ancient expertise. Dhanpath claimed that they first began using the basket because the traditional Kilta was so unpleasant and burdensome to use. Does Dhanpath Seth have a patent that is legitimate? The injunction was the case’s first issue, followed by the infringement. The Court ruled that bamboo baskets do not satisfy the novelty requirement and the section requiring customary knowledge. It was merely a copy of Kilta, the usefulness was not demonstrated, there was no originality, and the property was reiterated.
Conclusion
The Indian Patent Office has taken the required steps over the past two years to facilitate unfettered access to information about application status and granted patents. It is requisite All patented inventions must meet the requirements for patentability. When it comes to the investment made in the development of new technology, patents can offer both individuals and businesses significant value and higher profits.
Frequently Asked Questions
What is the Indian Patent Act, 1970?
The key characteristics of an invention, as defined by the Patents Act of 1970, are novelty, utility, and method of manufacture. According to the Act, “capable of industrial application” refers to an invention’s ability to be produced or utilized in a certain industry.
What is the duration of patents in India?
Every awarded patent has a 20-year term starting on the application filing date. The term of the patent, however, will be 20 years from the international filing date recognized under the Patent Cooperation Treaty (PCT) for applications submitted under the national phase of the PCT.
Which Act governs the patent system in India?
The Patents Act, 1970, as revised by the Patents (Amendment) Act, 2005, and the Patents Rules, 2003, control the Indian patent system. The most recent change to the Patent Rules was made in 2016, in accordance with how the environment is developing.
What can be patented?
A novel product or procedure that involves creative steps and can be used in industry qualifies as an invention and is eligible for patent protection. It must not, however, fall under the classifications of inventions excluded from patentability by Sections 3 and 4 of the Act.
Who can apply for a patent?
The real and first inventor or his assignee may file a patent application either individually or jointly with any other person. Legal representatives of any deceased individual may still submit a patent application.
How can I apply for a patent?
Both a provisional specification and a complete specification, along with the fee specified in I schedule, may be submitted with a patent application to the Indian Patent Office. If a provisional specification is included with the application, the complete specification must be submitted within 12 months after the provisional application’s filing date. After the aforementioned timeframe has passed, there is no further increase in time for filing a comprehensive specification.
References
- https://www.mondaq.com/india/patent/656402/patents-law-in-india–everything-you-must-know
- https://www.researchgate.net/publication/342626026_An_Overview_of_Patent_System
- https://ipindia.gov.in/history-of-indian-patent-system.htm
- https://ipindia.gov.in/writereaddata/Portal/Images/pdf/Final_FREQUENTLY_ASKED_QUESTIONS_-PATENT.pdf
- https://www.wipo.int/patents/en/
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