PATENT LAW IN INDIA

WHAT IS A PATENT?

A Patent is a legal method of protecting the intellectual property (invention) of an inventor. A right awarded to the exclusion of all others, for a specified time period (usually 20 years), commencing on the date the application was filed, by the government. It is a legal system created with the intention of creating equilibrium between the interests of applicants / assignees (exclusive rights) and that of society. Thus in turn the government imposes an obligation upon the inventor to divulge the details of his/her invention to the public so as to allow such an invention to be duplicated.

WHAT IS PATENTABLE IN INDIA?

As mentioned above an invention is capable of being patented. An invention is defined (According to Section 2(j) of the Indian Patents Act, 1970) as "a new product or process involving an inventive step and capable of industrial application." The invention must satisfy the following criteria in order to be patented in India:

  • The content of the invention must not be covered by Section 3 or 4 of the said act.
  • In Accordance to S2 (1) of the Patents Act the details of the content of the invention should not already be publically available, i.e.: the invention must be a completely new invention.
  • The invention must be so inventive that even another in the same field could not easily recognize the manner in which the invention was created i.e.: the subject matter of the invention.
  • The invention must be able to be applied in any real world industry.

In addition the inventor’s patent draft divulging the details of his invention must be so precise and specific that another individual in the same industry is able to reproduce the invention with great ease. This is called an enabling patent.

WHY PATENT AN INVENTION?

It is possible for an inventor to pass on the rights and responsibilities of the patent to a third party (an assignee/investor) so that the third party may use the invention on behalf of the inventor. As such it is important to patent an invention so that a) the inventor is protected from undue exploitation and b) also protects the investor’s right of use by ensuring the invention itself cannot be altered.

ESSENTIAL BACKGROUND INFORMATION

The 21st Century brought with it an electronic age, where globalization brings everyone closer to each other and inventions and products easily available in one nation are just as easily available in another. India, along with all other 192 members of the United Nations are obliged to use the multilateral TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) to create a basic framework for Patents and other IP rights. However, because being a member of the UN does not take away sovereignty (i.e.: the right to govern one’s nation in one’s own manner), enforcement of patents are left to the individual countries.

In 1856 India published its first legislation in regard to patents (Act VI) with the two pronged aim of 1) boosting the manufacture of new inventions and 2) persuading inventors to divulge the secrets of their invention. Naturally, new inventions lead to the growth of society which in turn leads to the growth of a nation. The Indian Patents and Design Act was first enacted in 1911, redrafted in 1970 and enforced in 1972. This is the current Patent Act, it amended the previous act so that pharmaceuticals and agro-chemicals are now barred from Patency and merged the existing Indian law so that inventions which are patented in other nations are freely copied and patented in India. It has since been amended twice first in 2005 and second in 2012 via the Patent (Amendment) Rules which was enforced on the 25th September 2012.